La función del registrador de la propiedad en la protección especial del dominio público en el actual registro de la propiedad global

Résumé

After the entry into force of Law 13/2015, on the Reform of the Mortgage Law and the Consolidated Text of the Real Estate Cadastre Law, there is a new sense of the registered property, of a graphic nature, which complements and does not replace the classic literary description of the registered properties. In this way, the traditional limitation of the Property Registry, which did not extend its effects to the factual data or descriptive data of the property, has been overcome. In accordance with the new regulation, the registration principles are extended to the descriptive data of the property when the registration of its graphic base occurs, in the terms established by the mortgage legislation, which allows to expand the legal effects produced by the Registration of the property. In the field of administrative legislation, the combination of the principles of inalienability, indefeasibility and imprescriptibility, together with the administrative procedures that the administration holds for the management, conservation and defense of its assets, results in a highly protective regime of public assets. . This regime, necessary as it is given the great importance of defending public interests, must be applied with strict compliance with the existing guarantees for individuals. Citizens are, without a doubt, in a position of imbalance in the defense of their interests against the interests of the administration, so that in the application of the referred legal-administrative regime, legal guarantees must also be preserved so that the rights of individuals are violated. In addition, the complex system of communications between the Registry and the Cadastre, implemented after the reform of graphic databases, already required from the beginning a technical development regulation that specified the channels and assumptions in which said communications had to take place, and the technical requirements that they had fulfilled the aforementioned communications. From Law 13/2015 and the Joint Resolutions on the exchange of information of 2015 and 2020, in relation to the public domain, the lack of insistence on the need for registration (and specifically the graphic base) of the lawsuit is derived. The reform, by insisting on the protection of the public domain "registered or not", only discourages registration. This entails, in the end, a degraded legal security and a weakening in the protection of the public domain and in the effects that it produces on the properties of individuals close to it. In this sense, it also highlights the lack of regulatory development of the articles modified by the Mortgage Law in the aforementioned reform. There are multiple precepts of the Mortgage Regulations that are understood to be repealed by the reform of Law 13/2015, making it necessary to modify the Regulations on this point, to clarify concepts and develop the new procedures of the Mortgage Law. Currently, the Voluntary Jurisdiction Law introduces as voluntary jurisdiction operators the Justice Administration Lawyers, Notaries and Property and Commercial Registrars. However, the narrow scope of powers attributed to the property registrar on this point is criticized, compared to other legal operators of a similar profile. Finally, the figure of the property registrar as conciliator should also be highlighted, which allows him to avoid disputes relating to real estate, urban planning or commercial disputes, or that deal with registrable acts or facts, which only confirms the capacity of this legal operator for carrying out other types of voluntary jurisdiction procedures. These new powers in matters of voluntary jurisdiction attributed to the property registrar, also constitute a help mechanism to resolve the conflicts that the inscriptions of graphic bases can generate. Regarding the scope of the Property Registry, it is worth saying that the registry institution has evolved in parallel to our society. The current objective of the Property Registry is focused on providing, through registry information, the most accurate and useful data possible to be aware of the legal regime, encumbrances and possible effects of a registered property. In this sense, the wording of article 9 of the Mortgage Law can be framed, by allowing the “urban, environmental or administrative situation” of the registered property to be recorded. This circumstance includes, of course, public domain properties or the possible impact of public domain properties on private properties, but also other situations or characteristics that may affect a registered property, such as the performance of polluting activities, the circumstance of being located in a special protection area or being an asset of historical or cultural interest, among others. In short, the prevailing trend (which has already begun through certain legal regulations, but must be further developed in multiple areas) involves creating, from different fields of action (graphic bases, public domain, special situations) a complete registration folio that allows all the necessary and relevant information to be given, so that the registered owner and other persons with a legitimate interest can know the limitations and conditions to which a farm is subject.