A simple attempt to update the description of a rural property in the municipality of Ingenio, Gran Canaria, has sparked a complex legal battle that has reached the General Directorate of Legal Security and Public Faith in Madrid. The epicenter of the conflict: a stone wall and a road, the demarcation of which has jeopardized the registration of a new georeferencing in the Property Registry of Santa Lucía de Tirajana.
It all began on February 5, 2024, when the registered owners of property number 26.866, located in Ingenio, approached the notary public of Telde, Mr. José Ignacio González Álvarez. Their objective was to initiate a file for rectification of the description and alternative georeferencing to the Cadastre, a procedure contemplated in Article 201 of the Mortgage Law. They sought to adjust the registered description of their property, which in practice had a larger area (from 1.986 to 2.303,93 square meters) and a different boundary than the one recorded in the registry. They provided a technical cadastral validation report that, although initially negative, indicated affected neighboring properties.
The notary, after accepting the request and requesting certification of ownership from the Registry, proceeded to notify all registered and cadastral neighbors who might be affected by this modification. The calm of the proceedings was broken on April 4, 2024. Mr. JDMR, owner of the northern-adjacent property (registered property number 12.302 in the same municipality of Ingenio), appeared before the notary to present opposing arguments.
Invasion of his property: He alleged that the northern boundary of the new georeferencing partially overlapped his property, disregarding a pre-existing "stone wall that delimited both properties." Impact on an access road: He maintained that the proposed georeferencing included, on the western boundary, a road that had been the "only point of entry" to his property "since time immemorial," and ignored a fence that delimited it. Faced with the opposition, the file's developers, along with an agricultural engineer, appeared before the notary again. They acknowledged the existence of a right of way for people along the western boundary of their property, which provided access to the plaintiff's property and other properties to the north. They clarified that the fence did not mark the boundary, but rather sought to prevent access by strangers.
Following this, they submitted a new alternative georeferencing (with positive cadastral validation) that incorporated this easement. This modification was again notified to the alleging neighbor, who, upon receiving it, did not raise any further objections within the established period. With this, the notary closed the file in July 2024. However, upon submitting all the documentation to the Santa Lucía de Tirajana Property Registry in December 2024, the registrar, Mr. Javier Angulo Rodríguez, denied the registration. His main argument, presented in the January 2025 qualification, was that, given the dispute expressed by the neighbor and the subsequent recognition of the right of way by the developers, "the creation of said easement in a Public Deed is missing." For the registrar, this deed was essential to "dispel any possible doubt about the described and georeferenced area on the property in the File" and should be registered together with the correction of the area.
The Notary appeals: "Excessive zeal" and defense of social peace
Telde notary José Ignacio González Álvarez did not hesitate to file an appeal with the General Directorate of Legal Security and Public Faith on February 3, 2025. In his arguments, he argued that the purpose of the file was "exclusively to resolve a registry inaccuracy" regarding the surface area, which, according to him, "has not been disputed by anyone." The notary argues that the neighboring property's claim regarding the easement does not constitute a dispute over the property's boundaries, since "the easement, by its very nature, is established on another's land." He insists that the property "will measure the same with or without the easement." He also emphasizes that the easement is not registered and the opposing party did not present a title. He emphasizes that, thanks to his mediation work, an agreement was reached, and a new map showing the crossing was tacitly accepted by the neighboring property owner by not objecting again.
The notary describes the registrar's demand to formally establish the easement in a public deed as an "excessive zeal" that lacks foundation, recalling that the formal establishment and registration of an easement are voluntary under Spanish law. He questions whether the registry's qualification, by requiring more than what was agreed upon, is not what "creates the conflict" and unnecessarily forces the parties to go to court, contrary to the dejudicializing spirit of recent legal reforms.
The General Directorate concluded that, although there is a registry dispute due to the neighboring property's opposition, the requirement to establish an easement to remedy the defect is erroneous. The establishment of a property right of way is a voluntary encumbrance, the registration of which is optional and does not directly affect the physical boundaries of the property to be rectified. It also recalled its consistent doctrine that an easement, even if not registered, does not prevent the registration of the georeferencing of the servient property and that the identity and boundaries of the property must be based on objective criteria, without the use or existence of easements necessarily altering the registry configuration.
For all these reasons, the General Directorate upheld the interested party's appeal and revoked the registrar's assessment. The ruling paves the way for the case to continue without requiring registration of the easement as an essential requirement for registering the georeferencing. Interested parties may appeal this ruling by filing a claim with the competent Civil Court within two months, pursuant to Articles 325 and 328 of the Mortgage Law.
