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Rights and registration

Rights

What types of holding right over real estate are acknowledged by law in your jurisdiction?

The main rights over land recognised in Peru are:

  • the right of possession;
  • the right of ownership;
  • surface rights;
  • easement;
  • use; and
  • usufruct. 

Regarding real estate guarantees, the most important rights in Peru are mortgages and pledges.

Are rights to land and buildings on the land legally separable?

Yes, surface rights allow beneficiaries to hold ownership in the building constructed above or below the ground owned by the landlord.

Which parties may hold and exercise rights over real estate? Are there restrictions on foreign ownership of property?

As a rule, anyone can hold and exercise rights over real estate. The only constitutional restriction is based on reasons of national security, whereby foreigners cannot acquire real estate properties within 50 kilometres of the national borders unless the Council of Ministers has expressly declared the purchase a public necessity. 

How are rights, encumbrances and other interests over real estate prioritised?

Although Article 2016 of the Civil Code states that registration is not mandatory in Peru, priority at the time of registration determines the rights’ priority. Thus, Article 1135 of the code states that if there are several creditors of the same real estate property to which the debtor was obliged to deliver, the creditor of good faith whose title was first registered will be preferred.

In default of registration, the preferred creditor will be the one with the oldest title. In such cases, titles that appear in a document with a reliable date are preferred.

Registration

Must real estate rights, interests and transactions be registered in your jurisdiction? What are the legal effects of registration?

While registration in Peru is voluntary, it does offer the highest level of enforceability and safety against third parties. Registered rights are presumed to be known by everyone.

Not all land is registered in Peru. The state is constantly conducting promotional campaigns to create a culture of registry among the population.

Only mortgages have to be registered to become valid and produce legal effects. 

What are the procedural and documentary requirements for entry into the national real estate register(s)? Can registration be completed electronically?

Sales of real estate are usually executed by a written contract (sale agreement), which is formalised by a notary public who prepares the public deed and registers it in the real estate property register.

Evidence of payment of transfer tax (impuesto de alcabala) by the notary public who prepares the public deed is required for the registration of the acquisition.

Currently, it is not possible to register titles electronically. Parties can use electronic services only to request the correction of non-material errors in the registry files or to obtain copies of registry files. However, notaries can electronically submit the registration of a bloqueo registral, which blocks the registry file of the property involved in the transaction until the new title is registered.

Electronic access to the public registry information is available in Spanish at https://enlinea.sunarp.gob.pe/.

What information is recorded in the national real estate register(s) and to what extent is such information publicly available?

The main information registered in the registry file of each property is:

  • a description of the property (ie, location, area and buildings);
  • ownership; and
  • encumbrances (ie, mortgages, easements and usufructs).

The main documents registered are:

  • judicial decisions;
  • administrative resolutions;
  • awards; and
  • notarised transcriptions of the public deed (parte notarial) issued by a notary public.

Documents registered in the real estate property registry are public. The only restriction on accessing the registry is when the requested information affects a third-party right of privacy (eg, registry of wills).

Is there a state guarantee of title?

The Peruvian registration system does not provide a state guarantee of title.

Compensation is available for registry errors (Article 3 of the Law of Creation of the National System of the Public Registry and Superintendence of the Public Registry (Law 26366)). The affected party can claim compensation for damages and losses in a judicial procedure.

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