The domain record for the rectification of the description, surface area or boundaries of a registered property is set out in Article 201 of the Mortgage Law and is correlative to the former domain record of greater capacity.
In this post we are going to explain how to solve an excess of capacity in a property and how to make a domain file to rectify properties.
This procedure fits into four cases:
The present file of ownership will not be necessary in two cases that are expressly included in article 201. 3. a) and b) of the Mortgage Law, which states:
3. Nor shall it be necessary to process the rectification file for the verification of differences in the size of the registered property, in the following cases:
a) When the differences in size do not exceed ten percent of the registered size and are proven by means of a descriptive and graphic cadastral certification, provided that the respective descriptive data show full coincidence between the plot of land covered by the certificate and the registered property.
b) In the event of a rectification of the surface area, when the alleged difference does not exceed five per cent of the registered capacity.
In both cases, it will be necessary for the Registrar, in a reasoned decision, to have no doubts about the reality of the requested modification, based on the prior verification, with accuracy, of the registered capacity, in the reiteration of rectifications on the same property or in the fact that the property is the subject of acts of modification of mortgage entities, such as segregation, division or aggregation, in which its surface area has been accurately determined. Once the registration operation has been carried out, the Registrar shall notify the registered owners of the adjoining properties.
Article 201.3 of the Mortgage Law
The purpose of the file is to rectify inaccuracies in the register, bringing reality into line with the Land Register, but it is not the procedure for the rectification of errors, which are carried out via article 211 or 40.d) of the Mortgage Law.
The largest domain records, those intended to rectify the surface area reflected in the Register, cannot be justified by a transfer transaction that justifies that increase in surface area, that is to say, we cannot use the domain record to register more metres if we have acquired them by contract.
The largest possible domain file is the one that allows us to rectify the surface area that appears in the Register, but within the limits and boundaries set out therein.
On the other hand, the title deed record under Article 201 of the Mortgage Law cannot be used for the descriptive rectification of buildings, properties or elements of any building under a horizontal division regime or properties resulting from administrative records of property reorganisation, expropriation or demarcation of boundaries.
The processing of this type of file is similar to that of the property ownership file for the registration of properties (article 203 of the Mortgage Law).
It can be promoted by the registered owner of the property or part of it.
The competence is that of the notary public in identical terms as in the property ownership file for the registration of a property.
The documents and data to be provided for the file are:
The notary draws up a report with the application, documentation and information provided, which he will transfer to the Registry with a view to issuing a certificate accrediting the rectification and preventive annotation, as happens in the domain file for inmatriculation.
What is referred to in the domain file for inmatriculation is identical to the procedures following the notarial act, such as the issuance of the certification, publication of edicts and qualification by the Registry.
