Cadastre and Land Registry corrections
In Spain there are two different authorities for the inscription of your real estate property: the Cadastre and Land Registry. If you own an urban or rustic property in Andalusia with administrative errors, it might be wise to consult the lawyers of C&D Solicitors if you can have these fixed. This for example can be a New Build Declaration or a Land Border correction. Acting in time avoids legal or fiscal problems in the future, especially if you are going to sell your Andalusian home.
Some procedures with the Land Registry and/or Cadastre can take many months or even years and many buyers aren´t prepared to wait. Also, these procedures might implicate extra costs, so it´s wise that a lawyer calculates these. As potential buyers might choose to purchase another property, for this reason, it´s best to take action rather sooner than later.
The difference between correct registration or inscription of rural property and the DAFO certificate
In principle, it´s important to know that the registration or the inscription of a rural or rustic property in the Land Registry and/or Cadastre isn´t the same legality of the property. In Andalusia it´s possible to buy, sell or own a property that is perfectly well registered, but that doesn´t have a First Occupation License or a DAFO-certificate (for rural properties in Andalusia) from the Town Hall. The house might even have a demolition order against it from the Spanish authorities for the fact that it was built illegally.
On the other hand, you can also have a property in the countryside with a DAFO of which the buildings and/or land surface aren´t correctly registered yet. Therefore, from an urbanistic and legal point of view, it´s very important to understand that these are very different matters.
Why do you need a lawyer for Cadastre and Land Registry corrections?
C&D Solicitors over the years has built up a lot of experience in correction procedures with the Cadastre and Land Registry. Our clients always receive our findings and recommendations in a legal report and if necessary, we can recommend an architect or topograph to make a technical report according to reality. Also, in some situations of land border disputes, we can try to contact your neighbours and explain to them the administrative situation that needs to be corrected.
Once the situation is clear and you want to proceed with the changes, your lawyer can sign the deeds at the notary on your behalf through a Power of Attorney. After this, he takes care of any tax payments and the correct inscriptions at the Land Registry and/or Cadastre. But be aware: certain procedures only can be carried out if your neighbours don´t object or even actively consent before a notary. Your lawyer/solicitor will therefore always inform you about the costs and potential risks for correction procedures with these two Spanish authorities.
The Cadastre is part of the Spanish Department of Finances and the correct inscription of your property is obliged as this authority determines your cadastral value. The cadastral value is used for several taxes as the IBI yearly property tax, your IRNR or IRPF income tax and –for urban properties- it also determines the Minimal Fiscal Value of your property multiplied with the specified index factor of your Town Hall. The registration number at the Cadastre for a property (a building) or piece of land is called the cadastral reference, or in Spanish ´referencia catastral´.
In contrary to the Land Registry, the Cadastre works with visual maps and drawings of the build constructions and land. Principally, in case of dispute, the Land Registry prevails over the Cadastre. To carry out changes in the Cadastre this Spanish authority will always first check the details of the Land Book Registry. However, depending on the details of the case -mainly for land border corrections- either the notary or Cadastre notifies affected neighbours and if they object, the requested change can be denied. Therefore, your lawyer will always inform you if there are any risks in the success of the required changes in the Cadastre.
Land Registry (Registro de la Propiedad)
The Land Registry is the authority that inscribes official ownership and debts like mortgages and encumbrances. It´s not an obligation to have your property inscribed, but very recommendable as it gives you a 100% legal guarantee about your ownership. Also, you can´t get a Spanish mortgage over a property if it´s not (correctly) inscribed in the Land Registry. The registration number at the Land Registry for a property (a building) or piece of land is called the Land Registry reference, or in Spanish ´finca registral´.
Changes and corrections in the Land Registry are done by signing different kinds of Deeds and declarations and documents at the notary, like a New Build Declaration or a Land Border Correction. Normally this is organized by your lawyer through a notarial Power of Attorney. He also takes care of the actual inscription in the Land Registry, tax payments and/or the correction at the Cadastre.
– New Build Declaration – Declaración de Obra Nueva
A New Build Declaration can either be signed for a completely new build property or for an existing property that has been extended. Common examples of New Build Declarations, that are required by a buyer of a property in Andalusia, are for unregistered pools (unless they are really flexible so you can change the location every year), extra bedrooms, storage rooms, fixed barbeques and terraces that have been converted into closed rooms.
If it concerns a rural property, you always need an architect´s antiquity report stating that the buildings are old enough according to the type of ground. Do you have any questions about what is technically considered a fixed construction or flexible element? Ask your lawyer to see if a New Build Declaration needs to be signed or not.
Not only the square meters of new constructions can be corrected but also the official usage description. However, because of the costs of a New Build Declaration this in practice isn´t done very often. Nevertheless, in some cases like if you need an opening license for a business (B&B, hostal or Casa Rural) correcting the usage is recommendable. The most common example is converting an agricultural barn into an official living space for renting out rooms to tourists. Of course in that case it´s the buyer and not the seller that should pay for these costs.
– Land Border Correction – Escritura de Linderos
In the countryside of Andalusia it´s very common that the land of the property isn´t yet registered correctly. In some cases the neighbors don´t even know what the exact borders are and a topograph needs to be hired to give his opinion in a topograph report. Depending on the exact situation with the neighbors, property owners or buyers can decide if they want to have an official Land Border Correction in the Land Registry and/or Cadastre or not. If the Land Registry records already are correct, then the corrections can be applied directly at the Cadastre by the lawyer. If however also the Land Registry needs to be updated, one of the following deeds are to be signed at the notary.
Notary deeds for Land Border Corrections:
- Extensionof the plot size – Extención de Cabida
- Reduction of the plot size – Redución de Cabida
- Landborderchanges– Rectificación de Linderos
- Aggrupation of several plots – Agroupación de Parcelas
- Splitting or Division of a pot – División de Parcela
Notary deeds for ownership changes
Of course, there are many more deeds that you or your lawyer/solicitor can sign at the notary for your Spanish property. These refer to ownership changes like:
- Buying/Selling real estate property: Title Deeds (also sales deeds/purchase deeds) – Escritura de Compraventa
- Buying with a mortgage: Mortgage Deeds – Escritura de Hipoteca
- Selling with a mortgage: Mortgage Cancellation Deeds – Escritura de Cancelacion de Hipoteca
- Buying a New Build Promotion: Deeds for Horizontal Division – Escritura de Division Horizontal
- Inheriting a Spanish property: Inheritance Deeds – Escritura de Herencia
- Donating/Gifting: Donation Deeds – Escritura de Donación
- Changing co-ownership:
- End of Co-ownership – Extención de Condominio
- Consolidation of Ownership (cancellation of usufruct) – Consolidación de Dominio
- Cancelation of Comonhold – Liquidación de Sociedad de Gananciales
- Correction of earlier signed deeds: Rectifications Deeds – Escritura de Rectificación