As a legal layman, one is aware of the importance of the land registry when buying property. What is stated in this publicly maintained register is valid for and against everyone. The content is incontrovertible. In Germany, as in Spain, the “public faith” (fe pública) in the land register applies.
However similar or comparable the principles of the land register may be, this in no way applies to the content of the land register and its handling. I will outline the most important differences below:
Access
In Germany, access to the land register is restricted and by no means public. Only notaries, authorities, courts and publicly appointed surveyors and, of course, the owner and their authorized representatives can inspect the property at any time – mere curiosity is not enough.
It’s a little easier in Spain. Anyone can search the land register on the website www.registradores.es (also available in English). The surname and first name of the owner you are looking for is usually sufficient, as is an assurance that you need this information for “a legal check”, for example. The land register extract is also available in English (additional costs 30 euros), payment is made by credit card.
Structure
The German land register is divided into three sections: Section 1 (owners), Section 2 (encumbrances and restrictions), Section 3 (mortgages and land charges).
The Spanish land register has no divisions. All entries, whether purchase or sale, creation or deletion of a mortgage, rights of way and attachments are entered consecutively.
Contents
In Germany, the land register itself only contains very brief details of the respective rights and their owners, so the German land register is short and clear. Expired rights are not crossed out, but underlined in red (reddened) so that you can immediately see what is (still) valid and what is not. The exact details of the reason for the respective entry and its scope can be found in the land file (master file), which is kept parallel to the land register. It contains all deeds and documents relating to the property. In Spain, no deeds or plans are kept or stored at the Land Registry. Accordingly, the essential content of the deed submitted to the land register for entry is transferred directly to the land register, which does not exactly contribute to its clarity and makes the individual land register pages very extensive.
Land register and cadastre
In Germany, every real estate transaction is based on a plot of land listed in the land register. There are exact survey maps, which are divided into districts, parcels and finally into individual plots (“Flurstück”). The starting point for every property transfer for the notary and land register is therefore a plot of land that has been precisely defined in terms of planning, size and boundaries.
Although there is a land register in Spain, it has no reliable plans. It is under the jurisdiction of the Spanish Ministry of Finance, which already shows that it is primarily concerned with setting taxes. There is no coordination with the land register. In practice, this has disastrous consequences: The size of a plot indicated in the land register or cadastre never matches; the superstructures are often fully recorded in the cadastre (because it is not about legality, but about income), but are missing from the land register because a land registry judge may only enter superstructures for which all permits have been properly submitted. Accordingly, you must not rely on the cadastral entry under any circumstances, as only the land register is legally authoritative.
Land register block for real estate transfers
In Germany, the notary not only handles the execution of the contract and entry in the land register, but also acts as trustee for the payment of the purchase price. He receives the purchase price on his escrow account, redeems existing mortgages in agreement with the banks and possibly enters new mortgages for the buyer. Payments are only made to the parties once all rights in the land register have been secured by a priority notice, so that it is completely impossible for other rights to take precedence.
As a rule, the notary in Spain does not assume any fiduciary duties; the parties are on their own when it comes to processing and paying out the purchase price. Once the purchase price has been paid to the notary, the buyer is only secured in the land register in relative terms, but not in absolute terms. Although the land registry will confirm the content of the land register to the notary immediately before recording, this will only be in relation to the end of the previous office day. Therefore, if a third party’s right is submitted for protection in the land register immediately prior to recording, it has priority. Accordingly, every notarized purchase contract in Spain contains the warning that it is not the notary’s land register information that is decisive, but the status of the land register when the deed is submitted.
So there are quite a few differences, although both systems, both in Spain and in Germany, work quite smoothly in practice. However, the requirements for the parties to be involved and to think along are definitely higher in Spain than in Germany and it is advisable to take your own precautionary measures.
The article was kindly made available to us by Dr. Armin Reichmann, www.dr-reichmann.com
