This Ruling deals with the refusal to enter a Rural Property Deed of Sale in the Land Registry where the property was formed by the segregation of another property, which in turn was the result of the division of another larger property, pending entry in the registry at the time of requesting the registration of the deed envisaged in the ruling.
We will begin by pointing out that along with the Deed of Sale dated 27 December 2000, the interested party filed a motion where he alleged that he had obtained the segregation licence by administrative silence procedure, all of which was accredited by means of, among others, the application sent to the Mayor of the local council, for a municipal licence to divide the land into plots, or for a certificate stating that it was not necessary, in order to carry out the segregation envisaged in the deed and proceed to register it with the Land Registry. The Registrar refused to enter the aforementioned deed as the portion of property sold was not registered in the name of any owner, and, as we have previously stated, the prior deed of segregation of the larger plot, from which, in turn, the sold property covered by this ruling came, had not been registered.
Subsequently, the deed of rectification was authorised of the aforementioned deed of 27 December 2000 and it rectified the later as it stated that the main property to be segregated was not actually the one described in the year 2000 deed, but rather the larger one of the plot, as was claimed was the outcome of various segregations.
The Registrar refused to enter the segregation carried out and referred to the case law of the High Court subsequently included in the current 2007 Land Act and its 1992 predecessor, where “licences against urban planning legislation cannot be deemed to have been acquired by the administrative silence procedure”. The registrar considered that in this case and as could be seen from the registry records, there were signs of illegal divisions into plots involving the main property being segregated, according to the report issued by the local council.
Likewise, according to the General Directorate, the interested party cannot allege lack of unit and global rating, as the documentary source is different from those that were covered by the first annotation, as it included a new deed of rectification.
With regard to the above, it is repeated doctrine of the General Directorate of Registries and Notaries Public that, in the majority of cases, the Registrar will lack, according to the documentation submitted, sufficient judgement to decide whether the alleged right acquired by the silence procedure is or is not against the planning requirements. Therefore, the Registrar shall make the relevant entry, unless it can be seen that the segregation in question clearly breaches the Urban Land Planning bylaws.
Well, as has been previously mentioned, based on the ruling of the Supreme Court on 28 January 2009, which has been included in the current state land legislation, “administrative licences against urban land planning requirements may not be deemed to have been acquired by administrative silence procedure”, which means that it must have been known by Notaries Public and/or Registrar, who must have been aware of it at the time of checking whether the deed submitted to be put on public record, and where applicable to register it, has a legal standing that cannot be contravened by the aforementioned jurisprudential argument.
Along with the above, we must refer to the autonomous urban planning legislation, that is, in the case in question, to the Urban Planning Act of Andalusia, which establishes that "any urban plot division shall require an urban planning licence or, where applicable, a certificate stating that it is not necessary", and also that "No public deed that contains plot division may be authorised or registered without the relevant licence, or the certificate stating that it is not necessary, being submitted and which the Notaries Public shall accredit in the relevant deed". Likewise, the same article of the regional legislation defines the concept of urban plot division for land not for building purposes as “the successive or simultaneous division of land, property or plots into two or more lots… that can lead to the formation of new entries”.
In addition to the above, both the Spanish land law and the additional legislation to the regulations to enforce the Mortgage Act regarding the entry of urban planning deed in the Land Registry, establishes that Notaries Public and Registrars shall request the relevant digital information or information accrediting the legality of the urban plot division from the Public Authorities.
Finally and to conclude, in the case in question, the Land Registrar refused to register the deed, and the General Directorate ratified the decision of the Registrar, as there are signs of illegal plot division regarding the main property for which the segregation is sought, along with the lack of response of the local council regarding the application to declare the licence not to be necessary, both of which are indicative that the plot division licence or the certificate stating it is not necessary cannot be deemed to have been acquired by administrative silence procedure pursuant to the aforementioned doctrine of the High Court.