THE NOTARIAL PROCEDURE OF ART, 18. 2 OF THE REAL ESTATE CATASTRE LAW

THE REMEDY OF DISCREPANCIES

(Registry and Cadastre Series) 

If your property deed does not agree with the cadastre, you have to keep reading. It is a query from real estate frequent that it reaches the notary's office.

The concordance between the Cadastre and the Registry is an old aspiration of the Spanish real estate system. Behind the reform of the Real Estate Cadastre Law (hereinafter, LCI) the year 2015 and the mortgage legislation this issue has been addressed.

We must start from the fact that such concordance not only raises practical problems of the first magnitude, but that achieving such concordance is a matter that can become very complex. Having said this, it must be affirmed that all the sectors involved are making an enormous effort to achieve the concordance of reality with the Cadastre and therefore with the Registry. 

The agreement between the Cadastre and the Registry reality requires a brief comment. In this little work we deal with the mechanisms provided by the cadastre legislation (LCI) so that the cadastral graphic representation agrees with reality. It is something of common sense and that today with the existing technical means it is possible. Another thing is to provide the factual description of the property with the powerful effects that mortgage legislation grants to rights, such as property rights. The notary Enric Brancos deals with highlighting this problem and starts from the principle that no matter how much the property is the object of the law, the discrepancy in relation to the physical circumstances is a matter of fact that is outside the Registry and subject to evidence before the Courts. 

Theoretical question aside, now I want to comment on how to register, cancel or modify the physical circumstances of cadastral parcels with reality. Therefore, we start from the fact that reality and cadastre do not coincide. Some examples are clarifying: 

  • The building has one more floor. 
  • The surface of the farm is larger or smaller than that reflected in the Cadastre. 
  • The boundaries are wrong. 

On the other hand, we must not forget that the correction of the Cadastre influences the Registry. In many cases these discrepancies are due to differences in the area of ​​a farm. Many times the difference between the Cadastre and the Registry is small. By small, it has to be understood less than 10 percent of the surface registry (art, 9 b) parf, sixth) or cadastral (art, 45 ICL).

Let me briefly indicate how a farm accesses the Cadastre. Accessing the Castro is called to incorporate. Incorporating means not only accessing the Cadastre for the first time, but also incorporating alterations or modifications in order for the cadastral parcel to coincide with reality. LCI itself calls it registration, cancellation or modification of the cadastral description of the properties (art. 13 ICL).

This end is regulated in the article 11 of the ICL. 

The methods of incorporation or access of a farm to the Cadastre are:

1.- Declarations, communications and requests

They are subject to regulation in the article 13 of the ICL which refers to the incorporation procedure through declarations; Article 14 of the ICL which refers to the incorporation procedure through communications; Article 15 which refers to the incorporation procedure by application.  

Article 16 contains common rules and Article 17 refers to the notification and effectiveness of acts of incorporation through the declaration or communication procedure. 

In short, the parcels access the cadastre because there is a declaration of the interested party, a communication from an official or a request from the Administration to the individual to include their property in the cadastre. 

2.- Correction of discrepancies

The cadastre is also modified by means of a discrepancy correction procedure and rectification that regulates the art, 18 of the LCI.  This procedure unfolds in two. The procedure that begins with the Administration (art, 18.1 LCI) and the procedure Notary for correction of discrepancies. This procedure is regulated in No. 2 of article 18 of the LCI and is intended to correct the discrepancies between reality and the cadastre. It materializes in a affidavit  specific but I do not see any inconvenience that it also materializes within a deed, for example of sale or segregation, where the discrepancy between reality and the cadastre is revealed. 

Requirements for the notarial act to be granted: 

  • Authorize a fact, act or business in a public document. For example, a sale or a segregation. 
  • The existence of a discrepancy between the physical reality and the cadastral certification (Art, 18.2 LCI). 
  •  Accreditation in the opinion of the notary of by any means of proof admitted in law of the discrepancy (art, 18.2 c).
  • Notification to the neighbors who may be affected by the discrepancy. The adjoining one must be affected by the notary's judgment. For example, if an invasion of the common elements is possible, the President of the Community will be notified. On the contrary, if it is a farm under the horizontal property regime and the boundaries with the neighboring farms are fixed and incontestable, they should not be notified as they are not affected in any case. 
  • 20 days without opposition. The notary will incorporate the new description into the document or will grant a new document with it. 
  • Within 20 days the affected neighbor expresses opposition or When it is not duly accredited, the notary will record it in the public document and, by electronic means, will inform the General Directorate of the Land Registry of its existence so that, where appropriate, it may initiate the appropriate procedure (Art, 18, d LCI).

In short, it is a simple procedure when there is no opposition.

At the Bosch-Bages Notary in Barcelona you can consult this service.

If you wish, you can make an online consultation to the notary. You can also request an appointment for a video conference with the notary and be able to resolve your doubts. This type of online notarial service is perfect when you should not proceed to draft documents. Click this link: online notary to request more information.

We also offer another type of online service, such as the request fast simple copies online. Fill in the form on the page and you can request your simple copy electronically.

As an anecdote we will comment that the word cadastre is often searched in Google as catharsus, according to the information provided by the search engine, however the search is automatically corrected.