 |
IurisConsulting Property Lawyers Legality Principle |
   |
|
|
The Legality Principle means that only the title deeds that bring together all the legal requisites, can be registered. From this principle derives the obligation of the registrar to examine all the deeds which inscription is requested and to verify if they meet the legal requisites. The consequence of the legal examination is to proceed to the inscription -if the legal examination turns out to be favorable, without defects-, to suspend it -if the defects are curable - or to decline it - if the defects are not curable-. The legal examination is done by the registrar with absolute independence and under his own responsibility. The object of legal examination is the legality of the extrinsic forms of the documents –in case of notarized documents it includes the competence of the Notary and the formalities of the deed-, the capacity of the grantors -examining the capacity to act or contractual capacity- and the validity of the disposal acts (the act of transferring property or title to it to another) contained in the deed, confronted with the entries of the Property Registry referred to the same estate or right. The registrar must verify that the person who transfers on the deed and the registral owner are the same person and that the estate or real right inscribed coincide with the one contained in the deed. To realize the legal examination the registrar verifies the presented documents and the register entries related. The registrar can request to be presented to him complementary documents and to examine other entries of different pages of the Registry. The inscriptions - and therefore the legal examination-, will be done in 15 days following the date of the presentation entry or 30 days if there is a just cause, and in any case in the term of validity of the said entry of presentation. If the title has been withdrawn before the inscription or has curable defects, the stated term is counted from the return or curation. The presentation of documents according to the indications of the registrar are pointed out by means of marginal note in the Property Registry books. Of the legal examination the registrar can deduce curable or irreparable defects. In this case, he must communicate it to the interested person, so that, if he wants, he can take the document and should correct the defect during the validity of the presentation entry. If he don’t correct the defect to satisfaction of the registrar, the registrar must return the document. The return of the title by refusal or suspension of the inscription, forces to the registrar to express, by means of note, the cause or motive. The correction of the defects indicated by the registrar are normally done rectifying the original deed before the notary. When the defect is arisen because other complementary documents should be presented, it is corrected by means of the presentation of the same ones. If the defect consists of the absence of external formalities, by means of its fulfillment. Term is not established for the correction, for what, at first, it is valid when done in any moment. Nevertheless the effects are different according to the moment in which it is done; if the correction takes place in the term of validity of the presentation entry, the effects of the inscription take place from the presentation of the title for the first time in the Property Registry; if the correction is done once expired the presentation entry, the corrected deed only produces effects from this second presentation. In case of not curable defects, the registrar must refuse the inscription and notify it to the applicant, who can interpose appeal or application for review. |
|
| |||||||||
