Dominical presumption of the title registered in the registry
We have commented in previous articles that it is always advisable to register the acquisition of real estate in the Land Registry. It is convenient regardless of the way in which the acquisition was made, whether by sale, donation, inheritance, etc.
In this article we explain the reason why such convenience. The title that is registered in the Land Registry enjoys a presumption of veracity towards third parties. The presumption of registry veracity is included in article 38 of the Mortgage Law, according to which it is presumed that the real rights published in the Registry exist according to their registration and belong to their registered owner:
“For all legal purposes it will be presumed that the real rights registered in the Registry exist and belong to their owner in the manner determined by the respective entry”.
The presumption that what is registered corresponds to reality, means that there is a presumption that the registered right exists and belongs to the person who appears in the Registry as its owner< /strong>. The principle of veracity provides protection for the owner that is always interesting, since if a third party disputes the ownership of the property, he must prove the reality of what he claims. This is known as the “protection iuris tantum” of the registered owner.
There is also a presumption of accuracy of the Registry, which means that the right exists to the extent and with the limits reflected in the registration. A consequence of this principle is also the content of article 34 of the Mortgage Law:
“The third party that in good faith acquires for consideration any right of person that appears in the Registry with powers to transfer it, will be maintained in its acquisition, once has registered its right, even if that of the grantor is later annulled or resolved by virtue of causes that are not recorded in the Registry itself.”
The protection of this presumption of veracity of the registry data, not only operates against the owner but also against third parties who are going to acquire the registered property . It is the so-called “principle of public registry faith”, according to which all those who consult the Registry data before undertaking an operation are protected in the belief that the registry data corresponds to reality.
It is presumed that the content of the Registry is true both in its accuracy and in its integrity, and therefore the “principle of public registry faith” protects the purchaser who carries out the acquisition trusting in the veracity of the content of the Registry.
The application of this principle is equally valid under the right of the person who acquires a property inherited. It is logical that the presumption of veracity for the acquirer in inheritance is applied under the same conditions as for acquisitions between living persons (inter vivos).
The essential effect of the principle of registry veracity is the reversal of the burden of proof. This means that if the veracity of the registration data is denied, it must be the one who denies it who certifies that the registration data is not true. This has been established by our jurisprudence, among which we cite the Judgment of January 30, 2003 of the Provincial Court of Tarragona:
“… is a consequence of the legitimizing force of the Property Registry, presuming that Registry and reality are concordant, in the sense that the registered right exists and belongs to its owner in the manner determined in the respective entry, as deduced from the provisions of article 38 of the Mortgage Law, which contains the “iuris tantum” presumption of agreement between the Registry and the legal reality, according to which whoever If you want to contradict this agreement, you must prove it by means of the relevant evidence, insofar as it is in accordance with article 1,214 of the Civil Code (LEG 1889, 27) (currently replaced by article 217 of the LEC of 2000”
The application of this principle has its practical relevance when requesting the return of the land occupied by someone who is not its owner and does not have title that legitimizes it. We analyzed this circumstance in our article Someone occupies part of a land or home that belongs to me, what do i do?. Notwithstanding the considerations issued in that study, we point out that our courts have applied the presumption of registry veracity to estimate the return of the property to its legitimate owner. A good example of this is the Judgment of September 19, 2000 reproduced:
“The identification of the property is achieved with the title presented with the demand for vindication (deed of declaration of new construction and division in horizontal property regime of the real estate complex accompanied by the claim), since the legitimacy of the registry covers the legal data and the factual circumstances themselves, such as the extension and boundaries of the property, as long as the “iuris tantum” presumption applicable to favor of the registered owner by virtue of article 38 of the Mortgage Law, as maintained by the Supreme Court, in a judgment of December 27, 1996.”
Conclusions:
First.- When real estate is acquired, it is advisable to register the title immediately in the Land Registry.
Second.- The recommendation operates equally regardless of the way in which the adjudication occurred: sale, inheritance, donation, etc.< /p>
Third.- The data from the Property Registry has a presumption of veracity both in its accuracy and in its integrity.
Fourth.- The interested party alleging that the registry data does not correspond to reality, must prove it, since the presumption will always operate in favor of the registry data.
Fifth.- It is possible to defend in court the rights of the owner who never registered his title, for more information we share the following article « Problems of properties not registered in the Property Registry«
