Why differ the square metre figures in the Cadastre and the land registry?

Sometimes, when you want to buy a property in Marbella, the square metre data in the land registry documents do not match the data in the land register.

WHAT DO WE NEED TO KNOW ABOUT THESE TWO LAND REGISTERS?
First of all, there are two land registers in Spain, each of which operates independently of the other, one being the district land registry and the other the land cadastre.

These differences are more often seen in older properties. Usually they can be seen in the built-up metres of the property, the boundaries of the property and even the parcel number of the corresponding property.

In many cases, we see a property advertised in Marbella with a certain square metre, and then when the buyer checks the exact details, or even draws up a floor plan, it turns out that the property is smaller than the advertised m2. We also often ask our clients to ask the land registry for floor plans, but unfortunately in Spain it is not compulsory to include a floor plan with the land registry documentation. And if you use the title deeds as a basis, they are not always accurate, especially for older flats, as some include terraces and balconies and others do not. First of all, it is important to clarify that two concepts are often confused: the useful square metre (Superficie útil) and the built-up square metre (Superficie construida) .

THE DIFFERENCE BETWEEN THE TWO PROPERTY REGISTERS
The Land Registry ( Registro de la Propiedad ) is a public service body whose main function is the registration of all legal acts, contracts, judicial and/or administrative decisions and any other rights relating to immovable property, whether or not they contain or affect immovable property. The purpose of the Register is to provide all the information relating to the property in question:

Description of the property
Property owner (ownership)
Encumbrances on the property

The Real Estate Cadastre ( El Catastro Inmobiliario ) is an administrative register of real estate under the Ministry of Finance. Its rules are laid down in the Real Estate Cadastre Law. It should be noted that, unlike the Land Registry, the registration of real estate in this register is compulsory and its main function is to serve as a basis for taxes such as IBI, inheritance and gift tax or transfer tax.

This type of documentary discrepancy is problematic when the owner wishes to put the property up for sale, particularly as it may cause some doubt on the part of the buyer.

In any event, it is important to know that as long as this type of discrepancy exists, the land registry will always be the authoritative one, as the cadastre is a purely administrative record and only serves as a basis for the application of the taxes applicable to the property concerned.

CORRECTION OF DIFFERENCES AT THE LAND REGISTRY – OR NOT?
The Mortgage Law was amended in 2015 and one of the aims is to achieve coordination between the land registry and the land cadastre and thus better identify properties.

If we want to correct the discrepancy between the two registers, we need to determine which one has the wrong information. In the majority of cases, the size of the property is smaller in the land register and larger in the land registry. As the latter is the basis on which the competent authorities determine the buildability of a plot, it is not advisable to seek correction of the error, as it may be unfavourable as a building of smaller square metres can be built on the plot.

It is important to note that in order to correctly register a property in the register, the regulations allow for certain errors in the floor area in relation to the cadastral map. However, these errors must not exceed 10%, otherwise the notary may stop the registration and open a mortgage file. If the discrepancy does not exceed 10%, the correction of the notarial deed does not require the opening of any proceedings, provided that it is proven that the other requirements for the registration of immovable property in the Mortgage Law are fulfilled.

If the 10% is exceeded, the lawyer may stop the registration of the title and initiate a land registry procedure. If the discrepancy does not exceed 10%, then the deed correction does not require any procedure and the registration of the property cannot be blocked, provided that it is registered in accordance with the other requirements of the Real Property Act.

In summary, these types of discrepancies may occur, but the buyer does not have to seek correction at all costs. The buildability of the land is a more important consideration in most cases than having exactly the same square metres in both registers, as it is often more complicated to correct errors.