Spain is undoubtedly one of the countries with the best system of preventive legal security, thanks mainly to our dual system of legality control provided by Notaries and Registrars, in their respective areas of responsibility.
Thus, in the day-to-day work of the notary's office, it is very common that, when a client goes to the Notary's office to sign a deed to be registered in the Land Registry, he asks when he will be able to have his final document completely registered in the Land Registry, with his right correctly registered and with the procedure completely finished.
In view of these common concerns, I have considered useful and pertinent the publication of this article, which, being intended for the general public outside the world of Law, I will try to analyze this issue, so that any person, when going to a Notary to sign a deed to be registered in the Land Registry, knows what deadlines to take into account when registering their right in the Land Registry.
What happens when a document is submitted for registration at the Land Registry?
When a document is presented for registration in the Land Registry (for example, a deed of sale, donation, or acceptance and adjudication of inheritance), the law determines that the first thing that must be done is to attend to the need to record it, that is, that a document has been presented with a legal act or business that may cause a new registration of a right or obligation related to a property that is duly registered in the Land Registry.
In practice, as we shall see, this requirement is embodied in the so-called presentation entry.
Thus, when a document enters the Land Registry (either physically or electronically submitted), and such document is likely to cause an entry in the Register, this institution, the first thing it will do is to make an entry of presentation in the Journal, in which, for proper identification and individualization will be assigned a unique identifier code, and that will include:
- The time at which it is practiced.
- The name and surname of the presenter.
- The mode of entry (physical, telematic, or by mail), of the title to which it refers.
- The exact time of receipt.
- The type of certificate presented, its date and issuing authority or official.
- The right to be constituted, modified, transferred or extinguished.
- The person in whose favor the registration is to be made.
- The property or properties to which it refers.
- In the case of a request for the constitution of a mortgage, the guaranteed principal liability for each property shall be stated.
This filing entry is, in practice, very important, since it is what will determine the registration priority of a document filed with the Land Registry, as opposed to others that may be filed later.
<ejemplo>Así pues, por ejemplo, si el día 1 de julio, a las 10.00 horas, se presenta a inscripción en el Registro de la Propiedad de Gandesa una escritura de compraventa de la finca X (en la que el Sr. Juan vende dicha finca al Sr. Marcos), y dicha presentación causa el correspondiente asiento de presentación, este hecho determinará la prioridad registral de esta compraventa, respecto de cualquier otro documento que se presente posteriormente, relativo a la misma finca, protegiendo así el derecho del Sr. Marcos, como nuevo propietario de la misma, frente a cualquier tercera persona.<ejemplo>
<ejemplo>Así pues, por ejemplo, si posteriormente, a las 11.00 horas de ese mismo día, se presenta otra escritura en la que el vendedor (antiguo propietario, Sr. Juan), constituye un derecho real de hipoteca sobre la misma a favor de un tercero, esta segunda escritura, al haberse presentado en segundo lugar, quedará relegada y supeditada al resultado de la inscripción de la primera, de modo que, si finalmente, la escritura de compraventa se inscribe correctamente, este segundo documento donde se constituye un derecho real de hipoteca sobre la finca nunca se llegará a inscribir, pues el tracto sucesivo registral lo impedirá (pues la finca ya no será propiedad del Sr. Juan, al haberla vendido y constar inscrita dicha transmisión a favor del Sr. Marcos).<ejemplo>
As we can see then, the filing entry, although it may seem an unimportant procedure, is in fact a very important issue for the protection of the rights and legitimate interests of the owners of any property in respect of which a new right or obligation must be registered.
As regards the duration of this filing entry, it is necessary to specify that the term of the filing entry is 60 days, counting from the day following its date (art. 17 of the Mortgage Law), which must be calculated as working days (art. 109 of the Mortgage Regulation).
Finally, once the term of validity has elapsed without the document having been dispatched, a preventive annotation having been made for correctable defects, or an appeal having been lodged, the entry will be cancelled ex officio, by marginal note (art. 436 of the Mortgage Regulations).
How long does it take to register a document in the Land Registry?
Once the document is presented for registration in the Land Registry (for example, a deed of sale, donation, or acceptance and adjudication of inheritance), the law determines that it is the responsibility of the Registrars to qualify, under their responsibility, the legality of the extrinsic forms of the documents of all kinds, by virtue of which the registration is requested, as well as the capacity of the grantors and the validity of the dispositive acts contained in the public deeds, by what results from them and from the entries in the Registry.
Article 18 of the Mortgage Law provides that the maximum period for registration of the document is fifteen days from the date of the filing of the document.
This period of 15 days shall be calculated as working days (i.e., Saturdays, Sundays and holidays excluded), and shall be counted from the day following the day of filing.
<ejemplo>Así pues, por ejemplo, si se presenta a inscripción en el Registro de la Propiedad una escritura de donación correspondiente a la finca X, el día 1 de febrero de 2024 (jueves), el Registrador dispondrá de plazo hasta el jueves 22 de febrero para calificar el documento.<ejemplo>
In order to verify that this term has been respected, the law obliges the Registrar to inexcusably express the date of the registration (if the qualification is positive) or, if applicable, of the negative qualification, for the purpose of verifying compliance with the fifteen-day term.
What other aspects must be taken into account in terms of deadlines for registration in the Land Registry?
Regarding the terms of registration in the Property Registry, it is also necessary to know that this term of 15 working days will begin to be computed from the moment in which the fulfillment of all the legal requirements is accredited, including the previous liquidation and payment of the accrued taxes, or from these last accreditations, if they occur at a later time.
This is expressly provided for in Articles 254 and 255 of the Mortgage Law, which state that no registration shall be made in the Property Registry without prior proof of payment of the taxes established or to be established by law, if they are due on the act or contract to be registered. However, in these cases, the filing entry may be made before the payment of the tax is verified.
Thus, this reality must be put in relation to the fact that most of the documents that are presented for registration in the Land Registry, carry a tax burden, such as, for example:
- Purchase and sale of a second-hand home: Transfer Tax (with a settlement period of one month, counting from the date of the act or contract).
- Donation of an apartment to a child: Donation Tax (with a settlement period of one month, counted from the day on which the act or contract of donation takes place).
- Acceptanceof an inheritance with a dwelling: Inheritance tax (with a settlement period of six months, counting from the date of death of the testator).
In view of the above, in practice, what usually happens is that, once the citizen goes to the Notary's office to sign the document, it is presented telematically by the Notary's office itself, for the purpose of making the corresponding filing entry, but the registration period of 15 working days that we have seen, will not begin to run from the time the corresponding liquidation is presented that proves the payment of the tax that has generated the operation in question.
Thus, depending on how quickly or how late this action is taken, the registration deadlines will be shortened or lengthened significantly.
Let us look at several examples according to the chosen way to settle the taxes of a sale of a second-hand property between private individuals:
Option 1. To arrange your own deed yourself:
If, as buyers, we choose to process the ITP settlement ourselves in the purchase of our home, once we have signed our deed at the Notary's office, the notary's office will immediately present our document, by telematic means, to the Land Registry, but only for the purpose of causing the corresponding filing entry (which, as we have mentioned, will provide us with that temporary protection of 60 days against documents that are presented at a later date).
Once this filing has been made, normally within 24-48 hours, the Registry will send to the Notary's Office the reliable registry notification of the filing entry, that is, the Registrar's certification confirming that the filing entry has been correctly made.
After that, the Notary Office will be able to close our authentic copy (that is, the physical document of our deed), and will communicate it to the client, so that he/she can go to the notary's office to pick up the deed, which he/she will need to carry out all the subsequent procedures.
Once the document is available, the interested party will be able to pay the tax, either electronically or in person, on the day and time that best suits him/her (here, of course, the question of deadlines will depend on the diligence and speed of the interested party in paying the tax, since the later the payment is made, the more time will be needed to complete the entire registration process).
Finally, after payment of the tax, with the corresponding proof of the self-assessment, you can go to the Land Registry to physically present our certified true copy of the deed of sale, together with this proof of the self-assessment, so that at that moment, as of the next business day, the period of 1 month begins to run.
Option 2. Delegate the processing to the notary's office itself:
Undoubtedly, this is the most interesting option, since, if we delegate the process to our trusted notary's office, the terms can be shortened in a very noticeable way.
In this sense, when we contact our trusted notary's office to prepare the transaction, it is normal that they provide us with an estimate of the transaction, with the corresponding provision of funds, where the approximate total cost of the transaction (including taxes and notary and registry fees) is shown.
Thus, if the client pays his provision of funds before signing his deed (i.e., he pays in advance to the Notary's office all the money necessary to settle the purchase taxes and the Notary and Registry bill), once the document is signed (which will also be immediately submitted to the Land Registry, telematically, for the purpose of causing the corresponding filing entry), the tax services of the Notary's office will proceed to settle the purchase taxes and the Notary and Registry bill, as soon as possible, the fiscal services of the notary's office will proceed to liquidate your tax, after which, also without delay, they will proceed to present telematically the proof of the self-assessment, so that then already, the term of 15 working days for the qualification of the Registry begins to compute without more delays, thus achieving to shorten to the maximum the total terms of the procedure.
Option 3. Delegate the processing to a third party:
Finally, the client may prefer to delegate the management of his document to a third party (usually a trusted manager or lawyer).
In this case, the procedure will be very similar to option 1, but with the difference that the procedure of the liquidation of the tax and the presentation to the Land Registry of all the documentation will be carried out by that manager or lawyer hired by the buyer, so that, depending on the speed and diligence with which he carries out his work, the terms of the whole procedure will be lengthened or extended accordingly.
What kind of decision will the Land Registrar make?
Once a document has been presented for registration in the Land Registry, the Land Registrar can only act in two ways:
If everything is correct, you must register the right in question in the Land Registry (for example, a property right derived from a deed of sale), issuing the corresponding positive qualification.
In these cases, if the qualification is positive, the Registrar will make the appropriate registry entries and will issue an electronic certification expressing this, identifying the data of the filing entry and the title that has motivated it, the most relevant incidences of the registry procedure initiated with said filing entry, and a summary of the specific entries made in the registration books, inserting for each property the literal text of the registration record made. Likewise, it will issue electronic certification in extract and with structured information of the new registry situation in force of each property resulting from the practice of the new entries.
On the other hand, if there is any defect in the document that prevents its registration, the Registrar will issue the corresponding negative qualification.
The negative qualification (even in the case of partial registration at the request of the interested party), shall be signed by the Registrar, and shall contain the impeditive, suspensive or denying causes and the legal reasoning thereof, organized in facts and legal grounds, with express indication of the means of appeal, the body before which it must be appealed and the time limit for filing it, without prejudice to the interested party exercising, as the case may be, any other means he may deem appropriate.
How long does the Land Registry have to notify me of the decision taken?
Indeed, in addition to the deadlines and particularities set forth in the preceding questions, it is also necessary to know that, once the Registrar has proceeded to qualify the document submitted (positively, by practicing the registration, or negatively, by issuing the corresponding negative qualification note with the defects noted), since it is an administrative procedure, the notification period provided for in the administrative legislation in this regard (previously, art. 58 of Law 30/1992, and currently, the provisions of Law 39/2015) will be applicable.
Thus, in accordance with this public law regulation, the body issuing the resolutions and administrative acts shall notify the interested parties whose rights and interests are affected by them, within ten days (which shall be calculated as working days, i.e. excluding Saturdays, Sundays and holidays), counting from the date on which the act was issued.
In view of the above, it is necessary to know that, once the Registrar has made the qualification of the document, it will be necessary to wait, at the most, 10 more days to receive the notification with such resolution.
<ejemplo>Así pues, retomando nuestro ejemplo inicial, si la calificación del Registrador se produce en el último día de plazo, esto es, el 22 de febrero de 2024, éste dispondrá de un plazo de 10 días hábiles adicionales para notificar al interesado la resolución adoptada, esto es, hasta el 7 de marzo de 2024.<ejemplo>
What happens if the Registrar takes more than 15 days to register my right?
If, for whatever reason, the Registrar does not carry out the qualification within the 15 working days mentioned above, the law determines that, in these cases of registrations made after the deadline by the Registrar, this will result in a 30 percent reduction of fees, that is, the client will have to pay less money for registering his right in the Land Registry.
Furthermore, in these cases, the law also foresees the possibility that the Registrar may be subject to the corresponding sanctioning regime, since we must not forget that Registrars are public officials.
In any case, in order to supervise compliance with the registration deadlines, the law also determines that, for the purpose of ensuring compliance with the registration deadline, the Registrars must send to the Directorate General, within the first twenty days of the months of April, July, October and January, statistics in electronic format containing the number of deeds filed and the date of registration thereof, as well as the percentage of deeds registered after the deadline.
However, as a final note on this particular situation, it is necessary to point out that, from my personal experience, the registration of the documents by the Registrars is carried out within the legally established term in almost all cases.
When will I get my final deed if everything went well?
If the procedure has been concluded satisfactorily, and it has been possible to make the corresponding inscription in the Property Registry, if we have delegated the management of our document to the administrative services of the notary's office itself (undoubtedly the most advisable option), once the notification of this has been received at the Notary's office, the notary's office will prepare our definitive authentic copy, with the document accrediting the inscription, so that the client can now go to collect his definitive document accrediting his right, duly inscribed in the Property Registry.
In these cases, at the economic level, the Notary's Office will proceed to liquidate the provision of funds delivered (paying the invoice of the Registry and the Notary's Office) and delivering to the client the surplus that, in its case, has been generated.
On the other hand, if it is the client who has carried out the management by his own means, the Land Registry will contact him to notify him of this, so that he can go to the Registry and pick up his document, upon payment of the registration fees due.
Thus, by way of example, we can summarize in broad terms all the milestones of this registration process in the following steps:
- Step 1. Signing of our deedFirst of all, in order to have our right registered, we will have to go to a Notary's office of our choice and sign there our public deed (for example, of sale, of donation, of acceptance and adjudication of inheritance, etc.).
- Step 2. The presentation entryThe same day, from the Notary's office, once signed our deed, the same one will be presented telematically to the Registry of the Property, to the effects of causing the corresponding entry of presentation.
- Step 3. Payment of taxesSubsequently, the interested party will have to pay the taxes due for the operation in question, through one of the ways we have explained (i.e., doing it himself, or delegating the management to the notary's office or another professional).
- Step 4. To present all the documentation to the Registry of the Property.Once the taxes of the operation have been settled, the corresponding proof of the self-assessment must be presented, together with the deed in question, so that now the Registrar can qualify the document within 15 working days. In addition, here we will have to take into account an additional term of 10 working days for the notification of the adopted resolution.
- Step 5. Withdrawal of the final registered documentIf the process has been concluded satisfactorily with the registration of our document, the client will only have to pick up the definitive document, now registered, at the Notary's office, if the management has been delegated to them, or at the Land Registry, if the management has been assumed by the client himself. Atthis stage, the Notary and Registry invoices will be paid and, if applicable, the provision of funds that may exist will be settled, in the event that the notary's office has assumed the management.
What happens if the document submitted for registration is negatively qualified?
In the event that the document presented for registration presents some defect that prevents its registration in the Land Registry, once the qualification note has been issued by the Registrar within the period of 15 working days, and notified to the interested party within the period of 10 working days that we have also seen, it is necessary to specify a series of additional effects:
In these cases, the filing entry will be understood to be automatically extended for a period of 60 days, counted from the date of the last notification of the qualification note (article 323 of the Mortgage Law). In addition, previous or subsequent contradictory or related entries will also be extended.
Thus, faced with this negative qualification, the interested parties will have several ways to proceed:
- It will be possible, in the first place, to try to correct the defect noticed by the Registrar (that is to say, to "fix" the problem presented by the document so that our right can be registered), within the term of validity of the filing entry, so that, once the corresponding correction is presented, the computation of a new term of 15 working days for a new qualification of the same will begin.
- It is possible, if necessary, to request the application of the so-called substitution table (Articles 19 bis and 275 bis of the Mortgage Law), by virtue of which another Registrar may be requested to re-examine the document and issue a substitute appraisal.
- Or, as the case may be, one may choose to appeal the negative qualification, optionally before the General Directorate of Legal Security and Public Faith (or before the competent body of the Autonomous Community with its own autonomous or foral civil law in matters exclusive to said foral or autonomous law) or directly before the courts of the capital of the province to which the place where the property is located belongs.
What happens if the document submitted for registration has defects that are noticed by the submitter himself?
If, once the document has been presented for registration, the presenter himself notices errors in the document that may prevent its registration, he may also choose to withdraw it, that is, to go to the Registry and "take" the document to correct it and present it again when the error has been "fixed".
<ejemplo>Así pues, por ejemplo, si Juan presenta una instancia privada al Registro de la Propiedad para solicitar una cancelación de hipoteca por caducidad que grava una finca de su propiedad, y una vez presentada, advierte que en la misma se ha olvidado de identificar los datos registrales de la finca, Juan puede optar por acudir al Registro, retirar el documento, subsanarlo, y volverlo a presentar, para que así se pueda practicar la inscripción o cancelación que requiere.<ejemplo>
In these cases, in accordance with Article 97 of the Mortgage Regulation, if the title had been withdrawn prior to registration, the qualification and registration periods will be counted from the return of the title.
What are the recent developments to be taken into account in terms of deadlines for registration in the Land Registry?
In terms of deadlines, there are also a number of additional issues to be taken into account, which will be discussed below:
First of all, it is necessary to bring up the Resolution of the General Directorate of Legal Security and Public Faith of July 7, 2023(HERE you can consult the same), by virtue of which, once the so-called Electronic Registry has entered into force, by virtue of Law 11/2023, temporarily , and until July 31, 2024, the term of qualification and dispatch of documents in the Property, Mercantile and Movable Property Registries has been extended by 30 working days.
- Therefore, during this period of time, the period for the qualification of the documents is increased to 45 working days, of which 15 days correspond to the ordinary period, and the additional 30 days to the period provided for in the aforementioned Resolution.
In addition, in accordance with the Resolution of the aforementioned General Directorate of June 19, 2024(HERE you can consult it), the deadline for the qualification and dispatch of the documents is extended by 15 working days:
- Filed and pending clearance as of July 31, 2024, provided that their ordinary qualification and clearance term had not been exhausted by that date (extension cumulative to the extension of the term of the Resolution of July 7, 2023).
- To be filed from August 1 through August 31, 2024.
Thus, in these cases, it will also be necessary to take into account this extension of deadlines in order to know how much time the Registrar has to carry out his work of registry qualification.
What final conclusions can we draw from all that has been analyzed in relation to registration in the Land Registry?
Finally, to conclude this article, I would like to highlight the extraordinary work carried out by the Property, Mercantile and Real Estate Registrars, who, together with the Notaries, working side by side as "two sides of the same coin", provide an extraordinary preventive legal security to the legal-real estate traffic in Spain, and all this thanks to a service offered by the State but at no cost to the public treasury, since the fees of these officials are paid by the clients who require their services, through the payment of the fees set by a public rule and equal for all.
In short, thanks to Notaries and Registrars, Spain has one of the best systems of preventive legal security, in which these two types of officials, having different competences and functions, thanks to this double control system, exercise a complementary function that ensures the correctness and legality of all real estate transactions that take place in our state, because in short, as the wise Spanish proverb says, "four eyes see more than two".
Hoping that this article will be useful for all those interested in registering rights or obligations in the Land Registry, the team of Notaría Jesús Benavides remains at your disposal to assist you in everything you need in this regard.
