13 september 2018

Title: The remedy of double immatriculation in the framework of the current mortgage legislation. Special reference to the coordination Cadastre-Registration of Property as a preventive approach.

Author: Iván Fabre Lafuente

The registration of assets in the Property Registry is undoubtedly the most effective proof of belonging to a particular owner, which only reinforces security within the legal real estate traffic. In fact, the Spanish mortgage system has not been unaffected to social changes and circumstances, which since its inception, have beset Spanish society. For this reason, it has contemplated different methods for the due constancy of the properties in it. In addition to others intended to rectify errors, which are caused in some cases by the loss of documents, lack of care or diligence, or by the absence of a clear cartography that reflected on paper the delimitation of the property. It has generated in many situations that the same physical portion of land consists of it in an independent way as two registered properties, being registered in favour of two different owners, including different participation fees. For this reason, the Law 13/2015, of 24th June, proposed a new regulation for the correct graphic identification of the registered properties, with the modification of the Mortgage Act and of the Consolidated Text of the Real Estate Cadastre Law. It purpose was, to a certain extent, assumed in the 13/1996 Law, when the necessity to establish a collaboration mechanism was considered between both institutions for this purpose, based on the obligatory nature to provide the cadastre reference of properties. The new regulation includes two differentiated fields of the legal system, civil and administrative. It is applied from its inception with the new spirit of the Voluntary Jurisdiction Law. This represents a notable change in the processing of new procedures, as there is an emptying of those previously processed before the Courts and Tribunals, by Notaries and Registrars. Although, as many judicial decisions have made clear, the real determination of the holder to be preferred in the event of a conflict of title will be given by the application of the rules of Pure Civil Law. It is here where the Judgment of 19 May 2015 has specified that preference will be given to those who enjoy the protection referred to in article 34 of the HL.

Spanish mortgage legislation was erected as an instrument that focused its attention on the registration of tittles

Therefore, starting from this new treatment that is contemplated about the correction of the double immatriculation, and that in essence has meant a transfer of Article 313 of the Regulation to 209 LH. The work is structured in three main chapters, as well as the respective introduction, conclusions and annexes. Thus, starting from the first one destined to the analysis of the concept and given situations, in which it differs, those that exist such pathology the ownership is in favour of the same person or in those cases in which there has not been a conflictual situation, because there is an agreement between the parties, or as opposed to those in which it has arisen. Starting from the origins of the Spanish mortgage regulations, it is obtained that at first the Spanish tabular system was not erected as a true protective instrument of physical reality, but rather focused its attention on the mere registration of titles. For this reason it has been considered as a register of titles rather than of properties, and from which can be inferred the vagueness with which a good number of them accessed the Register with a brief description that was complex for their identification on the parcel, and even more so on the land.

Therefore, the reform promoted within the field of mortgages and cadastral pursues the long-awaited coordination between both institutions so that the mere constancy of the identifying data of the second in the first allows its specific delimitation. At least that would be presumed that the protection of the tabular system is planned the portion of land. It is intended that this concordance can be used as an effective tool for the correct graphic and physical identification of the land registry. It is a method for the prevention of double registration, especially through the georeferenced graphic representation of the estate and the constancy of the graphic representation.