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IurisConsulting Property Lawyers Inscription Principle |
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The expression inscription, in the wide sense of the word, alludes to the register record or entry of an act or right. In the strict sense of the term. It is just one of the different types of entries that can be registered in the Property Registry, in this case, the inscription entry. In any case, the entries, given their finality of protection of the public interest trhough the certainty of law, are under the protection of the courts, and produce all their effects, while a court does not declare their inaccuracy. Declarative or constitutive inscriptionThe declarative inscription limits itself to reflect in the Property Registry books a previously existing juridical circumstances of a real estate. In this case, the constitution or transmission of the right takes place out of the Registry, and with independence of its registration. The declarative inscription constitutes the general rule in the Spanish Civil Law. On the other hand, the constitutive inscription creates the juridical effects of the deed. This way, the right doesn’t exist until the inscription takes place (this type of inscription is very exceptional, being the best example and principal exception the inscription of the mortgage). Voluntary or necessary inscriptionThe voluntary inscription is that one in which the holder of the right can request for the inscription, although he is not forced to. Not to inscribe implies not gaining access to the register protection, but the act, anyway, produce civil effects. The cases of necessary or obligatory inscription are those in which the law forces the holder of the right to inscribe, establishing a series of sanctions for the case he does not do it. The sanction can be, for example the loss of juridical effects of the non registered deed. In the Spanish Law the general rule is the voluntary inscription.
Partial inscription It can take place when it is requested by the owner or grantor of the deed to be registered only the parts of the document with positive qualification of the registrar.
Inscription and livery of seisin The transmission of the property takes place, among some other causes, as consequence of certain contracts by means of the livery of seisin of the estate. The inscription is not equivalent to the livery of seisin, since the registrar qualifies not only the title, but the whole effect of the transfer act, and what he states is a transmission of rights that has taken place out of the registry and, therefore, before the title becomes registered, the transfer has already taken place. In any case, since the registered title is normally a public deed, this one is equivalent to the livery of seisin unless the document expressly declares the opposite. Inscription and causeThe cause of the established obligation is an essential element of the contract. For this reason, the contracts are void without cause or with illicit cause. The property registry law request that the cause must be pointed out in the inscription, which, in turn, makes necessary that the cause appears in the title deed. The qualification of the registrar has to spread to the juridical cause of the transfer, which normally will be a contract. Therefore it is necessary that the cause appears in the document, so that the registrar can qualify it.
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