This resolution addresses whether the court sentence on ownership proceedings by means of the resumption of an interrupted chain-of-title to a plot should expressly contain the decision on the cancellation of contradictory entries or, to the contrary, has virtual extinguishing effects on its own without the need for any express mandate.
In the first place, an authenticated copy of the court sentence was submitted to the Land Register of Novelda, Alicante, declaring that the purchase of a plot by its owner was justified by virtue of a title deed executed before a notary.
Such sentence was negatively classified by the Land Registrar on the grounds that the court sentence did not order the cancellation of the contradictory entry in accordance with Article 286 of the Decree dated 14 February 1947 which approves the Mortgage Regulation (hereinafter the “Mortgage Regulation”) and establishes that any decree for the approval of ownership proceedings, in cases of the resumption of an interrupted chain-of-title, shall stipulate the cancellation of any contradictory entries to which Article 202 of the Mortgage Act refers, and shall necessarily indicate that all requirements of the aforementioned Article have been observed, as the case may be, and the manner in which the citations of rule 3 of Article 201 of the same Act were executed.
The appellant filed the appeal against such resolution, in consideration of the fact that such sentence need not indicate the express cancellation of the contradictory entries, on the basis of the Resolution from the General Directorate of Spanish Registers and Notaries Public (hereinafter “The General Directorate”), 7 March 1979 and case law of the Supreme Court, which consider that the exercise of any contradictory claim to ownership recorded in the name of another in the Land Register, without specifically requesting the annulment or cancellation of the contradictory entries in force, implicitly involves such request. He likewise alleged the impossibility of the rectification of the defect because the resolution passed on the proceeding had become final.
The General Directorate argued that this formal matter had already been previously addressed and that the solution was as established in Article 286 of the Mortgage Regulation.
With regard to the resolution alleged by the appellant, the General Directorate considers that regardless of the fact that this is an excessively formal and not fully justified requirement, the fact that the sentence pronounced for the resumption of the chain-of-title does not expressly contain the order for the cancellation of the contradictory entries, as imposed by Article 286 of the Mortgage Regulation, is a rectifiable defect. Along these same lines are the resolutions of 29 August 1983, 24 January 1994 and 4 October 2004, or the one of 16 March 2006, which deems the order for the cancellation of contradictory entries as obligatory.
Therefore the General Directorate deemed it important to differentiate the two following issues: the first, that the exercise of a contradictory claim to ownership recorded in the name of another in the Land Register, without specifically requesting the annulment or cancellation of the contradictory entries in force can implicitly lead to such request, and a second one on whether the court sentence to resolve such proceeding should comply with all the formal and substantive representations and requirements of legislation applicable thereto.
On the basis of the foregoing, the General Directorate concludes on the need to adapt the court sentence to applicable legislation, since by legal mandate the cancellation of given registration entries takes place for the legal safeguard of the registration entries established by Article 1 of the Mortgage Act itself and which would otherwise be relativised to the clear detriment of legal security.