charges on property

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28 Aug 2015 10:01 by Nels Star rating. 14 posts Send private message

Can anyone please advise?   Can charges be placed upon a property without the knowledge of the owner?

 

Many thanks.





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28 Aug 2015 11:41 by acer Star rating. 1424 posts Send private message

I believe they can through the Spanish Land Registry office, so that a transfer of ownership cannot take place until the debt has been cleared.



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28 Aug 2015 13:45 by johnzx Star rating in Spain. 5247 posts Send private message

I believe one can have a debt registered on their property without them knowing.   However, whether the person making the claim needs to try to contact you first I do not know, but of course if for any reason (lost in post) you did not get a notification it would not mean you do have a debt registered

 

If you are in doubt a search at your Property Registry and obtaining a ‘nota simple’  is the easy way to see what, if anything,  is registered.

 

As Acer says, if there is a dept registered then the notary will not permit any transation on that property until it is resolved





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28 Aug 2015 15:28 by Roberto Star rating in Torremolinos. 4536 posts Send private message

Roberto´s avatar

I think such things are published in the official bulletin of the relevant autonomous region, so even if the authorities have tried and failed to contact/notify you, this serv es as official notification (rather like public notices in newspapers).

So, yes!



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29 Aug 2015 12:13 by mariadecastro Star rating in Algeciras (Cadiz). 9344 posts Send private message

Legal Questions? Speak to Maria Direct

All charges processes have a precedent debt claim process obviously which is always notified to the debtor through legal means. These means vary depending on the origin of the debt/claim: Mortgage, taxes, social secirity, private debt...



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16 Sep 2015 10:57 by ads Star rating. 4025 posts Send private message

Does the conveyancing lawyer or notary or Bank have a legal obligation to update the land registry to identify any mortgage debt associated with the property, or is this only a voluntary process and not obligatory?

If this is only a voluntary process, doesn't this leave the land registry as an inaccurate recording vehicle for conveyancing purposes?

 





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16 Sep 2015 11:22 by johnzx Star rating in Spain. 5247 posts Send private message

As I have said, in another post, I made a loan against a property and the contract was signed before a notary, but I did not register it with Property Reg   When,  again as I described,  I wanted  to recover that debt, I was not informed that was obliged to / legally should  have register the debt.   However, subsequently when I made such a loan I did,  as I wanted it to be available info for anyone checking the property / debts etc.

Banks  etc. making a loan would always register it for the same reason, however general trade men etc.  may not. As I said, registering a debt is an expensive business and thus not cost effective for smaller amounts.





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16 Sep 2015 11:44 by lobin Star rating. 248 posts Send private message

If a charge against a property is not registered in the Land Registry, it is not enforceable against bona fide third parties and this includes a potential purchaser of the property.  That is the reason why banks and other lenders usually take good care to have mortgages registered in the Land Registry.  If the charge is not registered, it does not mean it is invalid or ilegal, it just means that it cannot be enfoced against a bona fide third party.

Not all debts relative to a property have access to the Land Registry.  Only debts that qualify as real estate charges are. That is why, for example, debt of community fees cannot be registered and that is why it is adviseable for a purchaser to get a debt free certificate from the community administrator before completing on a property.  The same is true of most debts from general tradesmen even if they are connected with a property.  If the property is not given as a collateral for repayment, there is no access to the Land Registry.

So, Ads, it is not a question of registration of a mortgage debt being obligatory or voluntary.  If the lender wants the protection of the Land Registry to make the charge enforceable against a bona fide third party, then it is obligatory to register the charge.  If it is not registered a bona fide purchaser would not be obligated to repay the debt if he can show that he had no knowledge of it.

 





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16 Sep 2015 12:06 by johnzx Star rating in Spain. 5247 posts Send private message

Lobin,  I have no substantial knowledge about recovering an un registered debt but this what I posted elsewhere in relation to a loan I made on a property.The contact was drawn up and signed before a notary:-

 I did not notify Property Registry that I had advanced a loan on a property.

Some while later I discovered that the property had been sold, but my loan had not been repaid.

When I explained to the notary who acted for the sale of the property, he said he would start proceedings against the new owner to receiver my debt. That was so even though the new owner, did not know of the debt and had no way of discovering it existed.

I would add that the notario's advice was that the new owner was liable. 





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16 Sep 2015 12:47 by ads Star rating. 4025 posts Send private message

Maria, please can you help clarify this as it appears we have two conflicting opinions, so in order for the forum to understand this important issue your knowledge would be much appreciated. Many thanks in anticipation. smiley

 





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16 Sep 2015 13:26 by mariadecastro Star rating in Algeciras (Cadiz). 9344 posts Send private message

Legal Questions? Speak to Maria Direct

Ads:

Notaries are liable of informing the buyer of what charges or encumbrances are registered at the Land Registr at the time of signing the purchase deeds. Notaries are, by law, authorised to even online access Land Registries records, which does not happen in pratcise and still, communication between Registrars and Notariers, prior to signing of Notary deeds is made by talefax provided by Registrars.

There is a recent Supreme Court decission condemning a Notary which did not supply updated information on charges to the buyer due to a technical failure of systems.

Lenders, holders of enforcemengt rights on embargoed assest need to diligently request the registration of them at the Land Registry, otherwise thwy will not be able to enforce those rights before third parties who would acquire assets according to what is registered at the Land Registry.

Hope it clarifies. I welcome questions....



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El blog de Maria



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16 Sep 2015 15:30 by mariadecastro Star rating in Algeciras (Cadiz). 9344 posts Send private message

Legal Questions? Speak to Maria Direct

The main function of a property registry is to provide reliable information and legal safety to citizens; they can rely on what is recorded there at the time of contracting on ownership or any other real estate rights: full and legal ownership, encumbrances, loans, charges, easements, habitation rights, ownership limitations, prohibitions for transference, judicial actions on the property, embargos... 

 

Land Registry was created in Spain in 1861 to cover three goals:

 

1. - To provide solid foundations to the mortgage loan system.

 

2. - To provide protection to the holders of registered rights

 

3. - To provide speed to real estate legal traffic.

 

In some jurisdictions, such as German, registration is mandatory in order to convey the property.  In other countries such as Spain, registration is voluntary, but it has huge and inmensely relevant advantages that make it  highly advisable! 

 

Some registration principles in Spain:

 

1. - Principle of request: Any registration in the Land Registry must derive from the request of interested party; the Registrar can not record rights ex officio.

 

2. - Principle of priority: "First in the registry, better in Law". Once a right is registered, any other non- compatible right cannot win over it. For instance: in the case of double sale of  a estate (a person sells a property twice, taking advantage that the first purchaser has not registered the property) the ownership will belong to that one good faith buyer who has duly recorded the right in the Land Registry, leaving the other only entitled to claim a compensation.

 

3. - Principle of Register Public Faith: This principle has the aim to provide legal safety to the market: "that which is not in the Register,is not in the reality". It is important to remark that the principle of Public Good Faith covers just purchasers for good and valuable consideration acting in Good faith. Good faith is supposed and who denies it need to prove it.

 

4. - Principle of legality: Just valid and perfect right titles are registered. The legal judgement on validity and fullness is the mission of the Land Registrar.

 

5. - Principle of publicity: Nobody can allegate ignorance of what is recorded in the Land Registry

 

6. - Principle of legitimacy: All the Land registry records make every necessary legal effect and are fully valid unless they are expressly declared inexact or invalid.

7.- Principle of sucessive tract: 

 

"No entry except the first, will not be registered, or recorded without the right form where it emanates has been recorded previously" In simple words: Land Registry in Spain works as a chain, so no link can be engaged without the previous one.  Sometimes, in order to register a right which has no inmediate right recorded, you will have to do through th registry procedure for resumption of the sucessive tract. 

 

For instance: we are working for a client who wants to register a house he has inherited, the deceased person did not have the house reistered under his name in the Land Registry, we need to prove ownership through public and private means and aply for the registration of ownerhip by the deceased person BEFORE instating our client's ( the heir) record.

 

8.-Principle of specialty:

 

Tells about the system of the Land Registry, whose unit is the PLOT, which has anumber and on which all related rights are recorded. So if you own a house in Spain, you need to know its registry number. Your property must be registered in the Registry according to location, no every town has one, so if your house is in a little town , it is very possible the Registry will be in the nearest big one.  Anyway, your lawyer will be able to check on your registered ownerhip status online. 

9.-Principle of impenetrability:

 

Once the procedure for registration of a right has started, there is no gate for any incompatible rights to try to enter the Registry.

 

As you know Land Registry  procedures  in Spain are very controlled and strict in order to provid safety and consitency to the mortgage market and the real estate traffic.

 

The role of Notary and Registrars is generally unknown by commun law citizens as it is completely different from the role of them in your legal system. That is also why  conveyancing lawyers play a very different part in Spain and in the UK when working for you at the buy or sale of your house in Spain.

 

Your conveyancing lawyer in Spain is a guide who will make your company while you are inmersed in a system, country and language that you do not know . The spanish convenyancer will procure that deposit and purchase contracts are being draft protecting your interests, and will defend your position before the other contract party in every sense. Notaries and Registrars are not in charge of protecting/advising you personally but on safeguarding legality of operations and protect your  public interest rights like Consumers Rights.

 

The sale is completed with the private contract but you will not be able to oppose it to good faith buyers if it is not registered and of course, no bank will lend you money if the property is not also properly recorded.

 


This message was last edited by mariadecastro on 16/09/2015.


This message was last edited by mariadecastro on 16/09/2015.

_______________________

Maria L. de Castro, JD, MA

Lawyer

Director www.costaluzlawyers.es

El blog de Maria



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