26 October 2022 · Neus Vallara
The manifestation of contaminant activities in the transmission of entities that make up an horitzontal division
The manifestation of contaminant activities in the transmission of entities that make up an horitzontal division
26 October, 2022
–
Civil
–
Neus Vallara
Reading time: 3 minutes
Is the owner of an entity forming part of a horizontal division obliged to state in the transmission deed of the property that no soil polluting activities have been carried out? Last October 11st was published in the Official State release a recent and interesting resolution of the Directorate General of Legal Security and Public Faith in this regard which we proceed to analyse below.
The faces of strangeness are common when a private individual goes to the Notary to transmit a house that is part of a horizontally divided building and the federation indicates that he is obliged to state that on the property he has not carried out contaminant activities. What contaminating activity can be carried out on the soil of a property that does not properly contain soil? First, for the consideration of ‘polluting activity’ as laid down in the sectoral laws which must be regarded as such and, secondly, because the property does not properly contain soil within its limits.
Read the wording of Article 98.3 of Law 7/2022 on contaminated waste and soil, which provides:
“3. The natural or legal persons who own estates are obliged, on the occasion of the transfer of any right in rem over them, to declare in the title in which the transfer is formalised whether or not any potentially polluting activity of the soil has been carried out on the property. (…).”
As we have advanced, what is controversial in the case is what we must understand by estate, by soil and by polluting activity when what is being transmitted is an entity contained in a horizontal division that all it has is a share of participation in the floor of the building, considered this as a common element in accordance with horizontal property regulations.
The Resolution of 12 August 2022 of the Directorate-General for Legal Security and Public Faith allows an appeal made by a notary of Cártama (Málaga) against the refusal of the registrar of the property of Álora to register a deed of sale of a house because it does not contain the manifestation related to the realization of potentially polluting activities of the soil.
Thus, after a careful analysis by the Directorate-General of the very purpose of the laws designed to control the pollution of soils and their proportional application in the specific case of a housing transmission, it decides that the aforementioned Law 7/2022 “… in no way can affect independent entities, or quotas of entities (we think of car parks or storage rooms thus transmitted), since they are only ideally projected on the floor — common element — of a building under horizontal ownership (because it descends into reality, it seems really difficult, if not impossible, to admit that, for example, to evacuate debris of cleaning products through the drains falls within the definition and the intention of the legislator). Therefore and in respect of such independent entities (or quotas thereof) such a declaration cannot be imposed in the light of the aforementioned Article 98(3), referring to the legal transactions it details; among other reasons, because in a farm where there is a share of participation on the soil, but not soil itself, it is not given to carry out any activity (remember the concept of potentially polluting activity) that serves as the basis for the declaration of contaminated soil.”
This resolution undoubtedly brings rationality to a manifestation that, in some cases, is totally disproportionate. However, would it be disproportionate to require such a demonstration from the owner of the entire building, in other words, 100 % of the entities that make up the horizontal property? In my opinion, no, being the owner of 100 % of the land and much less if, in addition, it would have been the promoter of the building and owner of the land on which the building was built, since in it, it could have carried out polluting activities.
Link to full resolution
###
---