Why is it advicable to register the title of a property in the land registry?

16 May, 2023
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Civil
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Pablo del Estal


The registration of the title of a property in the Land Registry is voluntary, but is it advisable? Absolutely yes, especially because of the protection afforded by the Land Registry against third parties.

Let us analyse a case of double sale resolved by the Resolution of the Directorate General for Legal Security and Public Faith of 7 September 2022 in which a buyer attempts to register his title in the Land Registry five months after having formalised the deed of sale. The Registrar denied registration of the title on the grounds that the property hadn’t been registered in the name of the original seller. To the buyer’s surprise, it turned out that the aforementioned seller had transferred the property again four months later and, furthermore, the second buyer transferred it again a few days later to a third purchaser, the latter being recorded as the owner in the Land Registry. The aggrieved purchaser therefore lodged an appeal against the negative rating note.

The Directorate General for Legal Certainty and Public Faith dismissed the appeal lodged by the first purchaser and ratified the negative classification, arguing that the registrars must dispatch the documents relating to the same property in strict chronological order of their presentation, and on the basis of the following arguments:

From the civil perspective: invoking the second paragraph of article 1.473 of the Civil Code which determines that the property belongs to the acquirer who has first registered the title in the Land Registry.

From the registry perspective: the starting point is Article 17 of the Mortgage Law, which enshrines the principle of registry priority by stating that, once any title has been registered in the Land Registry, “no other title of the same or an earlier date may be registered or recorded which is opposed to it or incompatible with it“.

In turn, the second paragraph of Article 20 of the Mortgage Act contains the principle of successive tract and is key to the refusal to register the title of the first purchaser, stating that “In the event of that right being registered in favour of a person other than the person granting the transfer or encumbrance, the Registrars shall refuse the registration requested”.

But what would have happened if neither of the two purchasers had registered the title in the Land Registry? The solution is again provided by Article 1.473 of the Civil Code in its third paragraph, which stresses the importance of the concurrence of good faith: “When there is no registration, the property shall belong to the one who in good faith is first in possession; and, lacking this, to the one who presents the title of the oldest date, provided that there is good faith”.

Therefore, given that a double sale can occur for various reasons – bad faith on the part of the seller, error, carelessness, defect in the title deeds, overstepping the bounds of agents or proxies, etc. – it is clear that the main function of the Land Registry is to provide and guarantee full legal security and priority to the rights registered therein.

In conclusion, the registration of the title deed in the Land Registry is advisable since, as the Association of Registrars itself also indicates, it offers the following advantages:

Being considered the sole owner, as long as there is no court ruling to the contrary.

To be protected against the seller’s creditors.

Being able to defend oneself against hidden charges that may affect the property.

Judicial protection by the authorities in case your possession is disputed or disturbed by others.

No one may acquire any rights to your home without first obtaining your consent.

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Real EstateTràmits

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