Registry and Notary Directorate-General. Resolution of 15 September 2009.

This resolution settles the appeal lodged against the refusal of the Arcos de la Frontera Property Registrar to register a purchase deed after the estate was divided up when a license was obtained by tacit consent.

A document authorised by the Notary of Arcos de la Frontera was presented to the aforementioned Property Registrar containing details of the purchase of a country estate after the estate had been divided up. It also stated that the license for the division of the estate had been obtained due to administrative silence.

Later on (two days later), an official document issued by the assistant secretary of the Arcos de la Frontera Town Council was also presented to the Property Registrar. This document requested the total ban on the use of the estate as a preventive measure, with the interested parties being informed of this. The Registrar was in favour of this.

Regarding the aforementioned purchase deed, the Registrar refused to register it in the belief that no license had been granted for its subdivision, as a license cannot be granted by tacit consent for land that is not for development.

Moreover, the Registrar argued that the granting of said license is conditioned by Article 79 of Royal Decree 1093/1997, dated 4 July, which approves the additional rules for the Mortgage Law Regulations regarding Property Register entries on acts related to town-planning (hereinafter Royal Decree 1093/1997). That is to say that Property Registrars, if they have justifiable doubts regarding the danger of creating a population centre (even when the public deed has been authorised) in line with the terms established in the applicable town-planning rules or regulations and if the corresponding license is not provided, will send a copy of the title or titles they have been presented with to the corresponding Town Council, accompanied by a document with a request for the pertinent agreement for each case and with the express warning that if no reply is received action will be taken in accordance with the stipulations of said Article.

In this case, the notification stipulated in the Article was ignored because the official document from Arcos Town Council had been presented with a request for the total ban on the use, given that this document supposes the express declaration by the Town Council regarding the stipulations in number 3 of Article 79 of the aforementioned Royal Decree.

However, the Notary who authorised the deed to be filled with the Registry, alleged that the procedure detailed in Article 79 was used inappropriately as this document is based on the fact that for its use no municipal license must have been provided, and yet a license for the division of the estate was obtained by tacit consent and is included in the authorised document. This is in accordance with the applicable regulations in Article 42 of the Law on the Legal System of the Civil Service and General Administrative Procedure (hereinafter “Law 30/92”) and in Law 7/2002, dated 17 December, on Town-planning Regulations in Andalusia (hereinafter “Law 7/2002”) in which it is stated administrative silence will be classed as tacit consent in the case of division or subdivision of lands.

According to the settled case law of the General Directorate, the granting of licenses for the division of land by tacit consent (once the legal period of time has elapsed allowing the Council to process the application of the interested party) is a consequence of Article 42 of Law 30/92, and its completion may not be altered by the stipulations of Article 242.6 of the Redrafted Text of the Law on Land Use and Town-planning (Legislative Royal Decree 1/1992, dated 26 June), current Article 8.1b), last paragraph of the Redrafted Text of the Law on Land Use of the 20th June, 2008, which establishes the impossibility of obtaining planning permission via administrative silence when this contravenes regulations or town-planning. This is also a guarantee by the individual parties that once the established period of time has elapsed without a decision being made by the administrative body, an administrative action is created that is applicable to all persons whether they are natural or legal, or public or private. This should be initially taken as valid and therefore it should be registered, regardless of the fact that the Council may, at the same time, take the appropriate measures regarding registration to ensure this results in a statement of inefficiency.

However, the General Directorate understood that the position, as it has been understood up until now, and which accepts the granting of licenses for division by tacit consent, should comply with the stipulations of the High Court Sentence, Court Three of 28 January 2009, which in the settlement of a cassation matter declared that licenses which contravene land and town-planning regulations cannot be taken as obtained as a result of administrative silence. In this way, and in accordance with this High Court sentence, (and even though Article 43.2 of Law 30/92, dated 26 November, establishes tacit consent as the general rule), the regulation itself contains the exception that another rule with the status of a Law or European Community Regulation may establish the opposite, as happens in this case with Article 242.6 of the Redrafted Text of the Law on Land Use and Town-planning which is not repealed by the only derogation provision of Law 8/2007 and with the stipulations of Article 8.1 b) of the Law on Land Use 2008.

Finally, and in relation to the principal of registration priority, in spite of the fact that the communication sent to the Property Registry by the Town Council was registered two days after the purchase deed was presented (which contradicts the applicable settled case law of the General Directorate and Articles 24 and 25 of the Mortgage Law, on registration priority), the General Directorate deemed that it was in keeping with the duty of the Registrar in such cases, so that the Authorities might take the legally established measures necessary to defend the legality of town planning.

By virtue of the above, the General Directorate rejected the appeal.