Director of International Relations And Business Registrars of Spain.  Real Estate Entitlements and Graphic Identification: Different ways of Immovable Property Registries and Cadastres interaction .   Introduction to the State of Play _________________  Fernando P. Méndez Director of International Relations Public Corporation of Real Property And Business Registrars of Spain. Member of The European Law Institute

Cadastres and Land Registries in Europe, Merged Organizations or Separate Institutions? The State of Play

The Evolution of Doing Business Position(I)   If we look at the Doing Business Report, specially before 2015, it can be noticed that the increase in costs and time in registration procedures is directly linked to the requirement, or lack thereof, of cadastral proceedings in the Registration Procedure. Such proceedings add costs but no real value to Registration.

The Evolution of Doing Business Position(II)   In this same way, according to the 2007 Zentrum für Europäische Rechstspolitics (ZERP) report from the Bremen University, that costs would range from 38,08% in England, to 50,78% in the Netherlands. Implicit costs, measured in terms of delay of the whole registration procedures, are not to be dismissed either, and would be hardly lower to the explicit costs.

The Evolution of Doing Business Position(III)   These requests do not seem justified for efficiency reasons. Such proceedings add costs but no real value to Registration. In fact, few buyers would use these plans in case to have the freedom for use it or not. Doing Business does not justify this change so expensive for citizens. Simply has introduced this change.

Cartographic Techniques as a Method for describing Boundaries (I) There are some reforms that aim at introducing these techniques as a compulsory way to describe the pieces of the earth’s crust where real estate iura in rem rely, overlooking the old literary technique of “metes and bounds”. The matter to be assessed now is whether such compulsion is justified, or not  

Cartographic Techniques as a Method for describing Boundaries (II)   Despite all the insistence about the serious problem of legal certainty that, allegedly, causes the lack of cartographic and geolocation procedures in the Land Registry offices, however it may be observed how low the level of boundary related litigation is.

Cartographic Techniques as a Method for describing Boundaries (III)   The mandatory use of these techniques in all real estate transactions would also cause a transitional problem that should be addressed. Indeed, if an already registered property, with a literary description, should incorporate a graphical description in successive transactions for them to be registered, such description should be agreed upon by the neighbouring proprietors through some new procedure, and that alone would imply highly variable, but potentially high, added costs which may lead to conflicts, without a clear benefit in sight.

Cartographic Techniques as a Method for describing Boundaries (IV)   The Graphical Description. Should it be provided Exclusively by The Cadastre?. A Monopolistic Provider is not justified.

Property Rights Registry and Cadastre Property Rights Registry and Cadastre.  One single Institution or two, but coordinated, Institutions?.(I)   If we observe the historical evolution of the various European Registries, we can see that Registries of Rights usually develop within the Sphere of the Ministries of Justice or the Judicial Power, while Cadastres usually orbit around the Ministries of Finance, also Registries of Documents do not allocate any property rights or titles. This different location inside the State guarantees the necessary specialization and the necessary equilibrium between these opposed interests.

Property Rights Registry and Cadastre Property Rights Registry and Cadastre.  One single Institution or two, but coordinated, Institutions?.(II)   On the other hand, if we look into development projects in emerging countries, we see that the main interest lies in establishing systems to increase territorial tax collection, therefore establishing cadastres rather than registries, which explain many of these projects failures. Some countries have updated their cadastre data several times without any significant impact over the real estate and mortgage markets, because that is a function of the Registry and not of the Cadastre.

Property Rights Registry and Cadastre Property Rights Registry and Cadastre.  One single Institution or two, but coordinated, Institutions?.(III)   The favourable arguments to a merged organization do not arise. For some managers the main reason for building a merged organization is the power and the approach to Cadastre and specially to Registry from the perspective of The Land Administration concept, considering that both institutions main functions and finalities are to be part of the Land Administration System.

Property Rights Registry and Cadastre Property Rights Registry and Cadastre.  One single Institution or two, but coordinated, Institutions?.(IV)   From the point of view of Cadastre and, specially, of Property Rights Registry, this is a by product, nor its function neither its finality. This by-product approach explains why we can see so many failed projects. These projects , in fact, design a merged organization of cadastral basis, therefore with a preferred purpose of taxation, and with a weak system of protection of entitlements and without ease and secure transactions. Therefore, the promised results never arise, because, in fact, the project is a cadastral project not a registration one. This happens not only in developing countries, but also in developed ones. For example, in Greece

Property Rights Registry and Cadastre Property Rights Registry and Cadastre.  One single Institution or two, but coordinated, Institutions?.(V)   The Land Administration and the Land Management are useful concepts for a better use of the territory. Cadastres and Land Registries are useful tools for achieving this goal, but neither Cadastre nor Land Registry have, among their functions, this function. Probably, cadastres can evolve to a more wide functions related to the territory. Property Rights Registries also broaden these functions, as we had seen before, but inside the development of their core functions. The working of land registries produces by products useful for the Land Administration, but land registries shall be designed and organised in order to achieve this own an important goals related to the efficient functioning of real estate and mortgage markets and the enforcement and realization of Law. The design and organisation of land registries in order to achieve goals of the Land Administration, regardless or overwhelming the needs of their core functions are a mistake.

Thank you for your attention!

The Common Vision Document.   After five years of difficult negotiations, in 2012, Eurogeographics, The Permanent Committee on Cadastre in the European Union –PCC-, The European Land Registry Association –ELRA-, and The European Land Information System -EULIS, currently undergoing liquidation- signed “The Common Vision Document” . One year later The Council of European Geodetic Surveyors –CEGS- also signed it. That Document advocates taking advantage of the synergies to be found when Cadastres and Registries cooperate the most. It does not by any measure proposes a merger or unification between Cadasters and Land Registries.

The European Land Registry Asociation (ELRA) Statement (I)   Land registries determine property rights and, to be effective, their decisions need to be recognised by the courts. This means that, like the courts, although land registries act on behalf of the state, they must be independent of it. The issues that land registries need to consider typically have a high legal content and, for land registries to be effective, their staff must be suitably trained and qualified

The European Land Registry Asociation (ELRA) Statement (II)   Most states have, in addition to a land registry, a mapping agency and a cadastre. The functions of the land registry, mapping agency and cadastre are complementary but different. Mapping agencies exist to record topography whilst the cadastre’s primary purpose is fiscal. Some countries have found it administratively convenient to combine the functions in a single organisation. In recent years technology has changed how the information contained in land registers is held, updated and published. Although new technology does not alter the core purpose of land registries, it is providing them with new opportunities.”