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IurisConsulting Property Lawyers Registry Principles |
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The Register Principles
The register principles are the fundamental guidelines of the Spanish register system. The most importants are the following ones. This week we just make a first approach to their meaning, but we will analyse them with full detail in our next articles in this section. Voluntary Inscription Principle In the Spanish Civil Law the general rule is the voluntary inscription, that is to say, the holder of the right can ask for the inscription, although he is not forced to do it. Not to inscribe supposes not obtaining the protection register, but it does not mean that the juridical act does’t produce civil effects. Assent Principle In the Spanish Law the express assent is not necessary for the register modification, since it is understood that the assent is impliedly granted in the assent given in the transmision deed. Publicity PrincipleThe principle of publicity can be understood as material publicity and as formal publicity. The principle of material publicity refers to the effects of the inscription. It comprises in turn two other principles: a) Principle of public register certification. It is the essential part of the spanish register 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. b) Principle of legitimization. It is the iuris tantum presumption (admitting evidence in rebuttal) that the inscribed rights exist and belong to his holder in the form determined by the respective entry. 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 Formal Publicity Principle means that the content of the Registry is public for all those that have an interest to find out about the inscribed real estate or real rights. This principle develops with the regulation of the different ways of access to the content of the Registry: exhibition of books, informative note or certification. Priority PrincipleIt supposes that, once a certain title has acceded to the Registry, other deeds about the same real estate, incompatible with the registered one, can not obtain the registration. Request PrincipleConsidering that the inscription is voluntary, it is necessary that it is requested by the interested persons. Legality Principle Considering the presumptions of existence and validity that the Law grants to the inscribed rights, it is necessary that these are previously examined by the registrar to make sure the strict observance of the law. This is achieved by means of the examination of the title by the registrar, prior the inscription. The registrar can refuse or suspend the inscription, when he considers that there are mistakes or lacks on the deed. In compensation, the law regulates a series of appeals against the qualification of the registrar. Successive Tract PrincipleIn fulfillment of the principle of successive tract, so that one could inscribe a right that brings cause of a previous holder, it is necessary that the same one appears previously inscribed in favor of the vendor. Speciality Principle
Each and everyone of the elements of the inscribed rights have to be perfectly certain: the description of the finca, its holder, the holders of limited rights, the content and the extension of these limited rights, etc.
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