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IurisConsulting Property Lawyers Legitimacy Principle |
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| Legal Standing Principle
It is the iuris tantum presumption (admitting evidence in rebuttal) that the inscribed rights exist and belong to the registered owner. It is presumed also that the holder has the possession of the inscribed rights or estates (this allows him to exercise his rights, and if he is disturbed by someone in his possession, he can use the so-called verbal procedure, which is a simplified one). The legal standing principle confers the registered owner the possibility of exercising a certain right based on the presumption of ownership granted by the land Registry. The publicity of the Registry creates an apparent title, and is this appearance the one that allows his use. The legal standing principle involve, in turn, two additional presumptions: a) Presumption of existence. To all the legal effects it is presumed that the registered real rights exist and belong to the registered owner in the form determined by the respective entry. It is a presumption « iuris tantum » (that admits test into opposite), established to all the legal effects. b) Possessory presumption. It is presumed that the one who has inscribed the property of the real estate or real rights has the possession of the same ones. It is presumed that he has possessed during all the time of validity of his entry adding that period of possession of the previous registered owners. As for the way of possessing there is presumed a public, pacific and not discontinuous possession. The most important consequences of the legitimacy principle are the power of disposition that it confers to the registered owner and the guarantee that it means for later purchasers. Practical consequences of the Legal Standing Principle. The presumptions derived from the Legal Standing Principle exempt of any need of prove to the registered owner. Therefore, just proving the inscription - normally by means of certification of the registrar–, is the part who disputs or pretend a right over the real estate who must prove the facts to destroy the legal presumption. This means that the registered owner can exercise the right, judicially or administratively, against any one, through the civil actions for declaration of title of land, for defence to a claim for a right of way or any other limited rights over his property, and for acknowledgement or admission of his ownership, just proving the registered ownership with the Registrar Certification, which, in the practice, is usually considered to be like sufficient. To exercise any legal action for the dispute of the registered ownership of a real estate, the pretender must, previously or simultaneously, file in the court demand of nullity or cancellation of the corresponding inscription entry. In case of preventive embargo (distraint), executory process (action for enforcement of judgment), or distraint proceedings against a real estate, they will be superseded –suspended- when the registered owner justify to the judge by means of a Registrar Certification, that the real estated is registered in favor of a different person from that one against whom the distraint was decreed. The principal effect of this rule, precisely by application of the Legitimacy Principle, is to prevent the registered owner from having to file, in defence of his right, a third-party clim to ownership.
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