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IurisConsulting Property Lawyers Principle of Public Register Certification |
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Principle of Public Register Certification
This is the essential principle of the spanish Property Registry system, since it determines the requisites, extension and limits of the protection of the Registry. It is presumed iuris et of iure (without admission of evidence in rebuttal) that the content of the Registry is exact and complete, in order to protect the bona fide third buyer. This presumption confers an indisputable position to the third purchasers who fulfill the requisites established in the Law. It is formed by means of two complementary presumptions: a) Presumption of accuracy. Since the Registry is presumed exact, the one who signs a contract trusting what appears registered remains protected by the law. b) Presumption of integrity. The title deeds of domain or of other real rights on real estates, which are not inscribed properly in the Property Registry, don’t affect to third party. According to this presumption, the third party who in good faith purchases by means of onerous title some person's right that appears in the Registry with faculties to transfer it, will be supported in his purchase once he has inscribed his right, although later the right of the grantor is annulled by virtue of causes that do not appear in the Registry. Hence, to have the benefit of the Registry protection the following requisites are demanded: good faith of the third purchaser; onerous purchase; registered vendor, thus authorized to transfer; and, finally, inscription in the Registry. The fundamental effect of the Registry protection consists of the fact that the purchaser is supported in his purchase in the registered provisions. The purchase of the third one is not validated if the act or contract is void, since the inscription does not validate the void acts and contracts.
Bona fide purchaseWith regard to the real rights, there is demanded a subjective good faith consisting of the credence of which the person who sold the property was proprietor of it and could transfer its domain. The purchaser is the one that must have the good faith. The good faith is always presumed, meanwhile the opposite is not proved. To destroy the presumption of existence of the good faith are required concrete and clear facts in such a way that no doubt remains about it. The good faith has to exist in the moment of the conclusion of the contract. In no case can affect the purchaser, the later knowledge of irregularities which affected the vendor . The third party has to ignore the inaccuracy of the register, being presumed his good faith while the opposite is not proved; also the acquisitive act has to be valid. The good faith includes, in the positive aspect, the credence of which the property belongs whom transfers it and, in the negative, the ignorance of the defects that invalidate the entitlement of the vendor. It is needed that the purchase is to onerous title. The purchaser by means of lucrative title (say, title acquired gratuitously, as a gift) does not benefit from any more protection than the one that had his giver. Hence the significance that in the title appears the cause of the purchase.
Void Acts or Contracts With regard to the nullity of the acts and contracts, several cases are possible, particularly nullity previous to the inscription and nullity of the proper inscription. Nullity previous to the inscriptionOnly the valid acts or contract can be registered. To avoid the entry of void acts or contracts are established two previous controls to the inscription. Firstly, the demand of authentic title deed; This is, granted behalf a Public Notary, Court order or administrative certified document (all this documents suppose the existence of a previous examination of the validity of the act). Secondly, Previous to the inscription, the registrar examines the qualification of the deed, which must spread to the extrinsic forms, to the capacity of the grantors, to the registered circumstances and to the validity of the act or contract. In case that, in spite of the indicated special controls, a void act or contract becomes registered, the validation of the same one does not occur, for the reason that not being the inscription constitutive, just declarative of the right, the inscription does not add anything new to the act and, therefore, it cannot validate the void act or contract.
Nullity of the inscriptionThe nullity can derive also of defects of the proper entry of registration. In this respect the inscriptions of the titles omitting or expressing substantial inaccuracy of the circumstances that the law demands are void, unless they could be properly rectified.
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