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Commercial Property - Spain

 

The Land Registry is the institution which regulates the publication of rights in rem and protects land titles in Spain.

 

Protection is based on: (i) the principle that a good-faith purchaser which has purchased land from a registered owner is protected from third-party claims (conversely, any element that is not recorded cannot affect a party which enters into a contract based on the content of the register); and (ii) the presumption that the content of the register is truthful and accurate (in order to protect third parties which, having complied with legal requirements, enter into a contract based on the content of the register).

 

The register aims to publicize all rights in rem over immovable property; each property is described on a different page, on which the various claims over the property are detailed. The registry is based on the traditional principle that property is a quasi-absolute right.

 

However, the traditional definition of 'property' has been progressively amended; the public conception of property is based on less 'Napoleonic' principles, whereby property is not an unassailable right, but involves certain obligations and is subject to certain restrictions. Arguably, this new concept is progressively evolving to allow the registration of building potential separately from land.

 

A first step was made when a resolution of the General Directorate of Notaries and Registries dated April 5 2002 called into question the traditional definition of 'property' under Section 348 of the Civil Code and stated that a building could be an independently registered property (based on the definition of 'property' in the Constitution) which kept a link to the land attached to it. More specifically, the resolution stated that an underground area for private use could be detached from public land and registered as an independent property. However, such separation should not be regarded as a partition: to the extent that a building must be allocated to a certain land, a link should be kept in the register so that publicly owned land may coexist with privately owned underground areas.

 

Recently, a resolution of the General Directorate dated February 24 2007 has gone one step further by stating that there is no obstacle to registering land and building potential separately. The Spanish legal system recognizes not only 'adjacent areas', but also 'buildable volumes'; it does not require that properties be partitioned, but simply that the building potential and its regime be defined. Therefore, building potential may be registered as an independent property where (i) there is fair cause, and (ii) the principles that govern registration in the register are complied with - in particular, the principle of specialty, under which the scope and extent of the rights and the claims recorded in the register must be defined precisely.

 

International Law Office