Relationship between LR and Cadastral

Are Land Registry and Cadastre different institutions?

In Portugal, Land Registry and Cadastre are different institutions.

In limited and exceptional zones of Portuguese territory in which there is currently cadastral information (only for agricultural land), the relation to the land register is limited to the extent that there must be harmonization between this registration and cadastral information concerning the location of buildings, area and tax number (cf. Article 28 of the CRP). In what concerns the immovable area it is the difference between the area stated in the registry and in the cadastre cannot exceed, in relation to the larger area, 5% (cf. Article 28-A, al. B)).

About this topic, we must refer to Decree-Law No 172/95,18th July – which approved the Regulation of the Cadastre – and Decree-Law No. 224/2007, 31th May – which approved the experimental scheme of the implementation, operation and access to registration information, aimed at creating the National System Operation and Management of Cadastral Information (SINERGIC) – both providing a legal cadastre, but without practical implementation to date.

The land registry information creates the presumption that the registered right in rem exists and belongs to its register holder on the precise terms stated in the registry (cf. Article 7 of the CRP). In Portuguese registration system, this presumption does not include the property description.

The plots are only literally described in the titles registered.

Coordination between the cadastre and land registry in Portugal is limited to harmonization rules according to Article 28 of the CRP:

• In areas where there is geometric cadastre – regarding the location, area and tax number.
• In the description of urban and rural buildings which have not yet been submitted to geometric cadastre – to the tax number and the area of the buildings.

Information about the limitations or restrictions in the public domain or based on reasons of social or environmental interest is very limited in the Portuguese land registry.

In this respect stands out the administrative easements – defined as duties imposed by law on a certain building, for the benefit of the public utility of a thing, and therefore established because of the utility of certain goods – and the public utility easements – which are considered as limitations on property rights aimed at the realization of abstract public interests, without, however, relation to other goods.

Note that easements, whose creation results directly and immediately from the law, are not subject to registration. Only those that require for their creation an act of the Directors are subject to registration – under the general clause that can be extracted from Article 21 of Decree 11/94 of January 13 – are registered.

Some urban restrictions are inscribed. This is the case, provided the legal framework of urban development and building urban (RJUE), approved by Decree 555/99 of December 16, of the urbanization, building or demolition works seizure, as provided in Articles 102 and following RJUE (cf. paragraph 8 of that Article 102). However, this registry does not generate any legal presumption and only has advertisement purposes.

Portuguese Land Registry information can be obtained online through a centralized system, through:

• The land registry’s permanent certificate, regulated by Ordinance No. 1513/2008, 23th December, or
• The simplified building and information (IPS), regulated by Ordinance No. 54/2011, 28th January¹ .

Portuguese Land Registry information cannot contain a graphic report that identifies the property and explains the global legal situation and effects requested.

Other kind of information provided by the Portuguese Land Registry System:

You may obtain at the land registry offices a certificate of the documents filed, as well as verbal or written information about the respective content (cf. Articles 26 and 104 of the Code of Land Registry).

The registrar controls the formal and material legality of the documents to be recorded in compliance with the principle of legality under Article 68 of the CRP.

The Portuguese registrar only controls partly the non-coincidence of the literal information of registry against the cadastre. It is the case of the agricultural land located in areas already subject to geometric cadastre. In this case the registrar only controls the coincidence between the land registry description and the cadastre for the location, area and article matrix (no. 1 and 2 Article 28 of the CRP).

Private documents can also serve as the basis for registration. In addition to public deeds and authenticated private documents, electronically filed (see above), some private documents can also serve as the basis for registration, in cases where the law allows (eg document for cancellation of mortgage-Article 56 CRP).

In addition to scanned documents which are submitted to the online registry request, an electronic document in the strict sense cannot be presented for registration. For this purpose, it is considered electronic documents those that meet the requirements of the legal regime of electronic documents and electronic signature (DL n 290-D/99 of August 2, most recently amended by Decree No. 88/2009 of April 9). That is, documents bearing qualified electronic signature (digital signature) with a valid certificate issued by a certifying body accredited under that regime.

As for the copies of electronic documents – which have the same evidential value as photocopies by paragraph 2 of Article 387 of the Civil Code – in different kind of support, may be admitted to registration, provided that the entity with jurisdiction to do so certifies that the document submitted is an electronic document which complies with the original (electronic document in the strict sense), the certification must appear if the original contains electronic signatures and, if so, whether they are qualified and were entered under a valid certificate issued by accredited certification body under the law (see opinion of the Institute of Registries and Notary experts council – RP 159/2007 DSJ-CT).

Registration is responsible for the information advertised in error, according to the rules of the tort of the State and other public bodies as set out in Law No. 67/2007 of 31 December (as amended by Law No. 31/2008 17 July).

The effects of registry publicity are different with respect to property rights and public domain restrictions. The advertising of public restrictions has merely the effect of simple publicity with no legal effects, while the publicity regarding to property rights is declaratory, and condition of enforceability of the fact registered in relation to third parties (see Article 5 of the CLR).

In general the neighbouring owners do not take part in the process of defining the property.

The exception is the case of updating the description in case of measurement error (provided in ii) sub-paragraph b) of paragraph 2 of Article 28-C of the CLR (evidence of measurement error must be submitted. This proof can be performed by presenting an immovable plan signed by the neighbouring owners).

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¹For more information see the Land Registry Publicity fact sheet.