On 3 June 2004, Court of First Instance No. 5 in Reus delivered a judgment concerning the description and registration in the Land Registry of two properties linked to the common areas of Planas del Rey: registered properties 1169 and 1331.
The proceedings were brought by the Urban Development Conservation Entity of Les Planes del Rei (EUCC), which asked the court to correct a Land Registry situation in which certain facilities appeared simultaneously in the descriptions of two separate registered properties.
The judgment reaches two main conclusions: the description of property 1169 must be corrected while retaining its municipal ownership, and property 1331 must be registered in the name of Pratdip Town Council.
A further stage following the 2001 and 2002 proceedings
The judgment forms part of the sequence of legal steps taken during the preceding years.
In October 2001, the Falset Court had substituted for Francisco Lebasque’s declaration of intent, allowing enforcement of the 1993 judgment and the formalisation of the transfers to continue.
A few months later, the agreement signed on 9 August 2002 expressly identified registered property 1169 as one of the properties whose land the EUCC was authorised to occupy until the development was formally taken over.
A duplication appears in the Land Registry records
After property 1169 had been registered, the EUCC discovered the existence in the Falset Land Registry of another property, 1331, which was still registered in the name of Francisco Lebasque.
However, the description of property 1331 included certain facilities that also appeared in the description of property 1169, including the swimming pools, tennis courts and various common services.
An examination of the documents established that property 1331 had been segregated from the parent property 1169.
The deed of segregation had included, among other things, the swimming pools, sewage treatment facilities, changing rooms, tennis courts, miniature golf course, garden and children’s playground.
According to the court, the fact that the description of the parent property had not subsequently been updated had resulted in a duplication of certain facilities in the Land Registry records.
Property 1169 remains in municipal ownership
The EUCC asks for the description of property 1169 to be corrected by removing references to the swimming pools and tennis courts, since those facilities belong to the segregated property.
The court upholds this request.
In the operative part of the judgment, it orders the description of property 1169 to be corrected by removing any reference to the swimming pools or tennis courts.
Most importantly, it states that municipal ownership of the property is to be maintained, as it consists of roads and green areas.
Property 1331 must also be registered in the name of Pratdip
The second decision concerns property 1331, which had been segregated from the parent property 1169.
The judgment orders that property 1331 be registered in the name of Pratdip Town Council.
The court considers that the EUCC has provided sufficient evidence to justify the correction and that the documents submitted establish the origin of the registration error.
Francisco Lebasque does not appear in the proceedings, and no third party claiming a legitimate interest appears to oppose the application.
A judgment about Land Registry records, not the formal takeover of the development
The scope of the decision must be understood precisely.
The judgment of 3 June 2004 confirms and corrects the Land Registry status of two properties: it maintains municipal ownership of property 1169, corrects its description and orders property 1331 to be registered in the Town Council’s name.
However, it does not rule on the administrative takeover of Planas del Rey as a whole and does not, by itself, determine the overall allocation of responsibilities for services or maintenance within the development.
This distinction is particularly important because the 2002 agreement had already stated that municipal ownership recorded in the Land Registry did not automatically amount to the administrative takeover of the urban development works.
The position of property 1169 becomes clearer in the chronology
The 2004 judgment therefore adds another important piece to the land-registration history of Planas del Rey.
In 2002, property 1169 had already been identified in the agreement between the Town Council and the EUCC. Two years later, the court confirms that its municipal ownership must be maintained, while requiring its description to be corrected to take account of the earlier segregation of property 1331.
The decision therefore provides a clearer understanding of the composition and legal status of these areas without attributing to the judgment administrative consequences that it does not expressly establish.
Jim – La Tribune de Planas
Translation of the original judgment
COURT OF FIRST INSTANCE No. 5 OF REUS
Tarragona
Proceedings: Ordinary proceedings No. 236/03
JUDGMENT
In Reus, on 3 June 2004.
Having been heard by Ms Rosa María Lunar Martín, substitute judge of Court of First Instance No. 5 of Reus, the present ordinary proceedings No. 236/03, brought at the request of the Urban Development Conservation Entity of Les Planes del Rei, represented by Procurator Mr Marcelo Cairo and assisted by lawyer Mr Francesc Sabaté, against the registered owner and any third party who might have an interest in these proceedings, seeking rectification of the Land Registry records, and having regard to the following:
BACKGROUND
FIRST. — Procurator Mr Marcelo Cairo, acting in the name and on behalf of the Urban Development Conservation Entity of Les Planes del Rei, brought ordinary proceedings against the registered owner and against any third party who might have an interest in the matter, seeking rectification of the Land Registry records.
In support of the legal grounds it considered applicable, the claimant stated, in substance:
1. — That the Planes del Rei development, promoted in the 1960s by Mr Francisco Lebasque, had remained incomplete both physically and in relation to the fulfilment of urban planning obligations and transfer requirements.
The developer had applied for suspension of payments in 1968, in proceedings No. 444/1968 before Court No. 1 of Reus, and the sports areas, facilities, roads and common areas in general had remained registered in his name despite his demonstrated intention to transfer those areas to the Town Council, as shown by document No. 1.
2. — In order to resolve this situation and the legal uncertainty arising from the common areas remaining registered in the name of a person subject to suspension-of-payments proceedings, the claimant entity had brought declaratory proceedings in 1990, case No. 12/90, before the Falset Court.
Those proceedings ended with a judgment requiring Mr Lebasque and the Creditors’ Committee in the suspension-of-payments proceedings to execute a deed transferring the common areas in favour of Pratdip Town Council, as shown by document No. 2.
Since the persons ordered to do so were unable to execute the deed, judicial enforcement proceedings No. 195/2001 were subsequently brought, as shown by document No. 3, resulting in an order for the corresponding registration to be carried out.
3. — The common areas of the Planas del Rei development were then registered in favour of Pratdip Town Council pursuant to that order, as shown by document No. 4.
Following the registration of property 1169, the claimant discovered in the Falset Land Registry another property, 1331, registered in the name of Mr Francisco Lebasque and described as containing the same swimming pools, tennis courts and common services, as shown by documents Nos. 5 and 6.
It became apparent that property 1169 was the parent property and that property 1331 had been segregated from it.
The deed of segregation included the swimming pools, sewage treatment facilities, changing rooms, tennis courts, miniature golf course, garden and children’s playground.
That segregation should have resulted in a new description of the parent property removing the services that could not simultaneously belong to two separate registered properties, as shown by document No. 7.
4. — A report had been requested from the Town Council’s technical services in order to determine the actual surface area of the facilities, green areas and roads within the development, as shown by document No. 9.
That report showed that the total surface area of the green areas, facilities and roads was far greater than the combined surface areas of the two registered properties and that those two properties therefore represented only part of the whole.
The remainder of the parent property 1169, following the segregation of property 1331, expressly stated that it “distributes its entire surface area between the roads of the development and its sports area”.
The claimant considered that this current use should be retained, while removing all references to the other facilities, since those were located on the segregated property.
As regards property 1331, it simply requested that it be registered in the name of Pratdip Town Council pursuant to the judgment already enforced.
On the basis of those arguments and the legal grounds it considered applicable, the claimant requested a judgment fully upholding its claim in the following terms:
1. — To order the correction of the description of property 1169 by removing all references to the swimming pools or tennis courts, while maintaining municipal ownership since the property consists of roads and green areas.
2. — To order property 1331 to be registered in the name of Pratdip Town Council.
SECOND. — The claim having been admitted, it was served on the defendants so that they could appear and respond. The procedure laid down in Articles 156 and 164 of the Code of Civil Procedure was followed.
THIRD. — The parties were summoned to the preliminary hearing. Only the claimant appeared and confirmed the terms of its application.
At that hearing, the outcome of which is recorded in the case file and deemed reproduced here, the claimant, as the only appearing party, then presented its final submissions. The case was thereafter left for judgment in accordance with Article 428 of the Code of Civil Procedure.
FOURTH. — The legal procedural requirements applicable to the proceedings have been observed.
LEGAL GROUNDS
FIRST. — By the claim giving rise to these proceedings, the claimant seeks a judgment containing the following rulings:
1. To order the correction of the description of property 1169 by removing all references to the swimming pools or tennis courts, while maintaining municipal ownership since the property consists of roads and green areas.
2. To order property 1331 to be registered in the name of Pratdip Town Council.
The defendant and the interested third parties are in default, following completion of the required service by public notice.
However, a declaration of default does not amount to acceptance of the claim or acknowledgement of the facts stated in it and therefore does not relieve the claimant of the obligation to prove the facts on which its claim is based.
From the evidence produced, consisting of the documents filed in the proceedings, the following is established:
1. — That the Planas del Rei development was promoted in the 1960s by Mr Francisco Lebasque; that in 1968 he applied for suspension of payments, dealt with by Court of First Instance No. 1 of Reus under No. 444/1968; and that the sports areas, facilities, roads and common areas in general remained registered in his name despite his demonstrated intention to transfer them to the Town Council.
2. — That the aforementioned Entity brought declaratory proceedings in 1990, registered as No. 12/1990 before the Court of First Instance in Falset, the judgment in which required Mr Lebasque and the Creditors’ Committee in the suspension-of-payments proceedings to execute a deed transferring the common areas in favour of Pratdip Town Council.
3. — That judicial enforcement proceedings No. 195/2001 made it possible to enforce the aforementioned judgment.
4. — That after property 1169 had been registered, it was found that another property registered in the Falset Land Registry in the name of Mr Francisco Lebasque, property 1331, described the existence of the same swimming pools, tennis courts and common services.
5. — That it has been established that property 1169 was the parent property and that property 1331 was segregated from it. The deed of segregation included the swimming pools, sewage treatment facilities, changing rooms, tennis courts, miniature golf course, children’s garden and children’s playground.
Upon the new registration following that segregation, the description of the services of the parent property that ceased to belong to it as a result of the new Land Registry situation had not been corrected.
6. — That an application for an interpretative order had been made to the court that heard lesser-value proceedings No. 12/90, but was rejected because it had been filed out of time.
7. — That, according to document No. 9, the total area of the green zones, facilities and roads is far greater than the combined areas of the two registered properties and that these two properties therefore constitute only part of the whole.
The parent property 1169 therefore remains after the segregation of property 1331.
SECOND. — The claimant’s request for rectification of the Land Registry records is based on the fact that the remainder of parent property 1169, following segregation of property 1331, expressly states that it “distributes its entire surface area between the roads of the development and its sports area”.
This must be regarded as its current use, while removing all references to the other facilities located on the segregated property.
As regards property 1331, resulting from the segregation, it must simply be registered in the name of Pratdip Town Council.
Article 1214 of the Civil Code requires the person seeking performance of an obligation to prove its existence, and the person claiming that the obligation has been extinguished to prove its extinction. The burden therefore lies on the claimant to establish the facts on which its claim is based.
In the present case, the claimant has established the facts on which its claim is based, since after formalisation by public deed and the subsequent segregation, the absence of a new description of the registered properties resulted in the duplication of certain services which, as has been demonstrated, are in fact located on only one property.
Furthermore, the developer, Mr Francisco Lebasque, has not appeared in these proceedings, nor has any third party with a legitimate interest in the dispute appeared. The evidence submitted by the claimant has therefore not been opposed.
The action must therefore be upheld, since the claimant has demonstrated the facts underlying its request and the existence of sufficient title to justify rectification of the Land Registry.
As no third party claims an interest in these proceedings, the documentary evidence filed by the claimant is uncontested, and its examination shows that the requirements for rectification are satisfied pursuant to Article 605 of the Civil Code and the corresponding provisions of mortgage legislation and its implementing regulations.
The claim must therefore be upheld in full on the terms requested.
THIRD. — Finally, pursuant to Article 394 of the Code of Civil Procedure, since no order for costs has been requested, no ruling on costs is appropriate.
FOR THESE REASONS
I fully uphold the claim brought by Procurator Mr Marcelo Cairo, acting in the name and on behalf of the Urban Development Conservation Entity of Planes del Rei, against the registered owner, declared in default, and against any third party who might have an interest in the matter, and order as follows:
1. — The description of property 1169 shall be corrected by removing all references to the swimming pools or tennis courts, while maintaining municipal ownership since the property consists of roads and green areas.
2. — Property 1331 shall be registered in favour of Pratdip Town Council.
3. — No order is made as to the costs of the proceedings.
This judgment shall be notified to the parties, who are informed that an appeal may be lodged before this court within five days of notification and, if admitted, will be heard by the Provincial Court of Tarragona.
Thus judged, ordered and signed.
PUBLICATION. — The foregoing judgment was read and published by the judge who delivered it, at a public hearing held on the same day as its date. I so certify.
