Have you ever walked into a house and thought its layout was rather "unusual"? Sometimes, behind a creative renovation lies something far less visible: an underlying legal problem. Our firm recently examined a case that illustrates this perfectly — and it is well worth understanding before signing any purchase deed.
The real-life case: two dwellings that, to the eye, are a single home
The starting point is easy to picture. A set of owners decides to extend the home they own outright (100%), taking a few square metres from the adjoining house — of which they own only 50% in co-ownership (proindiviso) — with the agreement of the co-owner who holds the other 50%.
They knock down the partition wall separating the two spaces, join them together, and at first glance the result is a single, larger and more functional home. They then sell, by public deed, the whole of one of the dwellings and the 50% undivided share of the other.
In the paperwork of everyday life, everything fits. On paper, in legal terms, the problems begin.
The underlying problem: what you see is not what the Registry says
Here is the key point that many buyers overlook: the Land Registry does not operate on the basis of what can be seen, but on the basis of registered properties(fincas registrales). No matter how many walls have been knocked down and however physically united the spaces may be, the legal reality does not change on its own.
Two independent properties still exist
Until the corresponding registration procedure is carried out, the Registry continues to recognise two separate and independent properties:one in the seller's name and another held in co-ownership. Physical union does not, in itself, bring about legal union. For two properties to become a single one on the register, a consolidation of properties(agrupación de fincas) is required — a formal act with its own requirements, which we examine below.
Part of the house did not belong to the seller: the co-ownership (proindiviso)
The second obstacle is more delicate. The square metres that were "annexed" belonged to a property held in co-ownership (proindiviso)that is, jointly owned on a 50/50 basis. And the Spanish Civil Code is clear on this point: none of the co-owners may, without the consent of the others, make alterations to the jointly owned property, even where such alterations might benefit them all (art. 397 of the Civil Code).
The three barriers to legalising the merger
If the new owner wished to make legal what is already physical fact, they would have to clear three barriers. And none of them is a mere formality.
1. The Land Registry: no merger without subdivision
To legally add those square metres to the other dwelling, they would first have to be subdivided de la finca en proindiviso y después agruparlos (segregación) from the co-owned property and then all co-owners and compliance with the requirements laid down by land-registration/mortgage law and planning regulations.
2. The homeowners' association: participation shares and unanimity
Even though physically it is a single house, for the homeowners' association those "added" square metres retain their own participation share (cuota de participación) in the communal expenses. Amending the association's founding title (título constitutivo) to reflect the new reality redistributing shares, merging elements does not depend on the will of a single neighbour: the Horizontal Property Act requires the unanimity of the owners' general meeting for this type of resolution.
3. The Town Hall: subdivision licence and technical project
Any modification of this kind must go through the Town Hall: a subdivision licence,, a technical project drawn up by a qualified professional, and municipal approval in accordance with the applicable planning regulations. In many cases, the rules make such a licence difficult to obtain or outright unviable.
What risks does the buyer really take on?
When the physical reality and the registered reality do not match, it is the buyer who inherits the problem. The most common risks are:
- Complicated financing. The bank values and grants the mortgage on the registered property, not on what can be seen.
- Difficulties in reselling. The next buyer will face exactly the same uncertainty, which reduces the property's appeal and value.
- Dependence on the other co-owner. By acquiring a 50% undivided share, any decision concerning that property requires reaching agreement with the other owner.
- A gap between what is deeded and what is real. Where the registered description does not match the actual surface area, this can lead to disputes over discrepancies in area (diferencia de cabida) and even to liability for hidden defects (vicios ocultos).
Recommendations before signing the deed
If you are thinking of buying a home that has been "extended" or joined to another, do not rely solely on what your eyes tell you. Before signing:
- Request an up-to-date nota simple (Land Registry extract) for all the properties involved, and check how many registered properties actually exist.
- Compare the physical reality with the registered reality. The fact that a house "looks" like a single dwelling does not mean it is one for legal purposes.
- Verify the licences. Check whether the works to join the properties had the relevant licence, and whether the corresponding subdivision and consolidation exist (or are feasible).
- Examine the co-ownership situation. Understanding exactly what you are buying 100% of a property or an undivided share is decisive.
- Obtain legal advice beforehand. A professional review before the purchase costs far less than resolving the dispute afterwards.
La moraleja es sencilla: lo que en el salón parece una gran idea, en la escritura puede convertirse en un gran problema. Asegúrate de que la realidad física y la registral se den la mano antes de firmar.
