Report of the coastal area

Report of the coastal area of Ampuriabrava de Castelló d’Empúries (COSTA BRAVA - CATALONIA - SPAIN) on the 16/08/2016:

Report of the coastal area

As you surely remember many moorings of Ampuriabrava could have been recognized as private property by the law 2/2013, as made clear by the Constitutional Court in different aspects. Nevertheless, the mooring owners cannot register their property title, as well as the later transfer of ownership in the Land Registry; this represents an illegal situation.

However, recently, with the help of the Public Notary of Castelló d’Empúries, the registration of the transmissions in the Registry of Property is being obtained.

In the next text I will explain the reasons for this situation, which has to be resolved as soon as possible by the Spanish Government. Although if the current lack of a real Spanish Government is preventing to find a solution for the existing conflicts.

1) Are the mooring owners allowed to sell them?

Although the answer is positive, the problem arises because the title of ownership transfer cannot be automatically registered in the Land Registry, unless you ask the Notary to visit the place of mooring and to write a deed which proves that the certain mooring is not situated in the maritime and terrestrial zone.

The current Property Registrar allows the registration of the transmissions in the Register by this deed. However, we have to keep in mind that this is the point of view of the current Registrar and, if he is changed, the new one may have a different opinion.

This is because according to the decision of the General Directorate of the Land Registry and the Notary's office from the 23/01/2014, which was confirmed by the sentence number 57 by the Court of Appeal of Girona on the 18/03/2015, it is interpreted that it is necessary to previously fulfil the following conditions before being able to register the transfer of the mooring:

1. The mooring owner has registered his title in the Land Registry prior to the law 2/2013. (The one who has not registered his title will not be entitled to the recognition of his property right),

2. That the Government continues with the review of the affected demarcations already carried out and by law 2/2013, in order to issue a certificate stating that the moorings were excluded from public property.

If the latter condition IS NOT FULFILLED, due to the fact that the demarcation that took place in 2010 had been declared invalid, because of a process error, which was confirmed on the 15/04/2015 by the Supreme Court; this implies:

a. that today there is no demarcation in Empuriabrava, and thus 

b. the State cannot issue acertificatedeclaringthatthemooringislocatedoutsidethepublicarea.

c. the State has to carry out a new demarcation,

d. and while the new demarcation has not been carried out yet, the State must adopt a new ministerial decree clarifying the procedure for the registration of mooring transfers in the Land Registry. Nevertheless, the State has not yet carried it out and is does not seem as if it could do so soon, because of the current provisional government.

The State is obliged to register the public property in the Land Registry within a period of two years starting from the moment of the implementation of the Law 2/2013 (which took place on 31/05/2013) and has ended consequently on the 31.05.2015, without having carried out any registration that requires a prior demarcation.

Since this condition was also not met, the registration of the sale of the mooring in the Land Registry is not possible, due to the fact that the operation is in a " dead end", because it depends on whether the State has previously met the said formalities.

However, since in Spain the registration of a title of a real estate property in the Land Registry is not a requirement for the validity of the title or the transmission, the moorings can be sold, even though it is convenient to do it in public deed to prove the legitimacy of the title and not by a private contract. (Actually, as it was done before the Land Registries were created in Spain, approximately around 1861).

If that sale is accompanied by a notarial deed stating that the notary attests that he has been at the place of mooring, which is the object of the sale, and has verified that it does not invade the public maritime and terrestrial zone, then it is possible to register the sale or transmission in the Register of Property with the support of the current Registrar.

2) Does a mooring owner have the right to use this mooring?

The answer is "yes", but only with regard to the surface that the mooring owns as property by itself. If the surface is bigger than it appears in the title, the mooring owner only possesses a "precarious right of use" of this part, because the usufructuary right of this surface belongs to the concessionaires of Ampuriabrava.

3) Can he sell the usufructuary right of the mooring by selling the mooring?

He can only sell the m² according to the plan he is the owner of. The remaining part that he is using precariously not, because it does not belong to him, since it is sea and land area which use is entitled to the concessionaires. The sale of this mooring's excess of m² does not appear in the previous owner title, therefore it is legally invalid. If he wants to cede the mentioned excess to a third party, the concessionaires must specifically allow it.

4) Does the buyer need to pay when he wants to use the mooring?

I understand that this is so, if what he pays the general maintenance costs of the coastal area.

5) Can other boats also dock on the mooring?

Yes, because he is the owner of the m2 stated in his ownership title and regarding the use of the remaining surface he may only allow it if the concessionaires do not expressly prohibit it.

 

 

Author: Alejandro Espada Gerlach, is a lawyer who specializes since 1980 in the areas of civil and commercial law and owns law firms in Barcelona, as well as in Fortià (Girona), which is located near Rosas and Ampuriabrava.

For questions or suggestions, please feel free to contact him as follows:

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Tel: +34 93 3012741

Mobile: +34 609376006

He welcomes you after prior appointment in one of the two offices.

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