This judgment of the Supreme Court realizes an analysis of the scope of the principle of registral legitimisation, that forms a part of the principle of registral presumption, and that comes reflected essentially in the Article 38 of the Mortgage Law (“Ley Hipotecaria”).
"For all the legal effects there will be presumed that the proprietary rights recorded in the Register exist and belong to their holder in the form determined by the respective entry. Similarly, there will be presumed that the one who enters the control of the real estate or proprietary rights has the possession of the same ones".
Therefore, this article establishes a presumption " iuris tantum " that, in conformity with the jurisprudence, can be discredited by contradictory proof that evidences the inaccuracy of the entries in the register. In case of reference, the appellant company that seeks an ordinary declarative civil action acquires properties with some boundaries and a surface that was certified in public deed and that coincides with the description in the register and it also exercises the action of declaration of ownership, with the objective of declaring the right of property and the protection of such property, being based on the article 348 of the Spanish Civil Code.
The issue debated in the judgment concerns who must bear the burden of proof, therefore confronting the aforementioned Article 38 of the Mortgae Law with Article 1214 of the Spanish Civil Code, in force at the time when the matter was known in the first instance and therefore the object of the study of this judgment. Since we have previously stated, the principle of registral legitimisation of Article 38 of the Mortgage Law establishes a presumption " iuris tantum " in favour of whom the register gives title, or that which is the same, confers a just and suitable protection upon the holder releasing him from the burden of the proof, rendering truthful all the effects of the proprietary rights as recorded on the Register in the form determined by the entry.
For instance, in this case, the principle of registral legitimisation works in the favour of the appellant company, a buyer in good faith, on having trusted the Property Register, and remains released from the burden of proof. As with the previous example, the burden of the proof lies with the party that contradicts the presumption of veracity and accuracy of the entry in the Register.
As already indicated, the Supreme Court in its judgment of 30th November 1991, the aforementioned principle of public faith in the Register protects legal truths, concerning the ownership, existence and extension of the proprietary and real estate rights that are registered and conferring truthful status upon the current entries, but not of absolute form, being able to affirm that the presumption of registral accuracy does not cover merely factual information and circumstances. Thus, the aforementioned presumption of registral accuracy can be discredited by evidencing proof of the inaccuracy of the entry on the Register.
In conclusion, and using the factual matter of the referred judgment as an example, it is possible to affirm that the principle of registral legitimisation does not extend to factual information, as if it were irrigated on unirrigated land or as if it is built or in construction, rather on the other hand it covers the situation and boundaries in such that way a third party only can use irrefutable proof to contest the inaccuracy of the entry on the Register so that he defeats the presumption " iuris tantum ", as mentioned previously, that proclaims the content of the Registers.