Rectifying registered area and boundaries: the three routes and which applies to your case

Quick answer: the Conservador's Regulations do not set out an express procedure for rectifying registered area and boundaries, and that is the root of almost every problem. In practice there are three routes: a public deed of rectification, a court judgment, and the administrative route under article 67 of the General Urban Planning and Construction Act, which allows the Municipal Works Director to authorise modifications and rectifications of boundaries provided this does not affect third party rights or national assets for public use. Which one applies depends on a single question: whether what is being corrected is an error, or whether what is being sought is more surface area.

That distinction decides everything. Correcting a transcription error is one thing. Registering more square metres than the title ever had is another, and there the Conservador is right to refuse, because those extra metres have to come from somewhere: from the neighbour, from the public road, or from the State.

What rectifying the registered area and boundaries actually means

The registered area is the surface area the title attributes to the property. The boundaries are its limits, described in the registration by reference to neighbouring properties, roads, watercourses, or landmarks that were recognisable at the time.

The problem appears when that description, written forty or seventy years ago, no longer matches reality. The cases are always the same:

• A boundary reads "road to" and that road has since changed course or stopped existing.
• A boundary names the neighbour by surname, and that neighbour died in 1970.
• The registered area in the title is approximate, because it was never actually measured, and the current survey produces a different figure.
• The registration was done by adding or subtracting odd parcels, and nobody redid the description of the whole.
• The property was subdivided in practice, and the registrations kept describing the original property.

Why it matters so much now. As long as the property does not change hands, the discrepancy stays dormant. It wakes up when you need to sell, mortgage, subdivide, regularise a building or inherit. At that point the bank, the Conservador or the Municipal Building Department ask for the paper to match the land, and the process that seemed simple grinds to a halt.

The question that decides the route: error or more surface area

No unilateral rectification can alter an already registered ownership situation. That is the rule that explains why the Conservador refuses when it senses that, under the name of rectification, what is really being requested is to register square metres that used to belong to someone else.

The three routes, in detail

1. Public deed of rectification

It is the most commonly used route. A public deed is executed correcting the description, accompanied by a survey plan, and it is registered as a marginal note against the title registration. If the Conservador objects to it, it is worth checking what type of objection it is and what deadline applies before resubmitting it.

Its limits are twofold. First, it only works when there is an error or outdated description, not when more surface area is being sought. Second, when the property borders other registered properties, it is prudent for the neighbours to take part, or at least not be affected, because otherwise a matter involving a third party who did not sign is being resolved by deed alone.

2. Court judgment

When the error is not obvious, when neighbours will not take part, or when the Conservador objects to the deed, the route is judicial. It can be a non-contentious proceeding, if it is really just a matter of proving an error, or a contentious one, if there is a real boundary dispute with the neighbour.

The judgment serves as a registrable title on its own, and that is why it resolves at the root the cases where the Conservador will not accept the deed.

3. The administrative route under article 67

It is the least well known and in many cases the fastest. Article 67 of the General Urban Planning and Construction Act allows the Municipal Works Director to authorise modifications and rectifications of boundaries, subject to two express conditions: that third party rights are not affected, and that national assets for public use are not affected either. Once authorised, the modification is registered with the Conservador and noted as a marginal note against the title.

When it is worth looking at this route first. On urban properties, or in areas covered by a planning instrument, where the Municipal Building Department already has records for the area, and where the adjustment is to boundaries and not to surface area. When a national asset for public use is involved, a road, a street, a riverbank, this route is closed and you have to take another one.

The step by step we follow

• Studying the title backwards. You cannot rectify what you do not understand. You need to see where the current registered area comes from, and at which transfer the discrepancy arose.
• A georeferenced topographic survey. It is the document that turns a discussion about words into one about coordinates.
• Comparing against neighbouring titles. This is where it becomes clear whether the discrepancy is your own error or an overlap with the neighbour, which is a completely different problem.
• Checking for national assets for public use around the perimeter: roads, riverbanks, strips of land. If the property borders a river, you also need to look at what happens with the land left behind by the watercourse.
• Choosing the route based on the above, and not the other way round.
• Execution and registration, following up on any objection if the Conservador raises one.

What to do if the Conservador rejects the rectification

This is common, and it does not always mean the rectification was poorly framed. The first thing to do is check the date of the entry in the Repertorio, because there are two months running to fix the problem without losing priority, and then classify the objection. All of that is covered in the guide on the Conservador's rejections, including the article 18 complaint for when the refusal is unfounded.

Frequently asked questions

My land measures more than what the deed says. Can I register the difference?

Not through the rectification route, if those extra metres were never in the title. Rectification corrects errors, it does not add new surface area. For those extra metres you need to work out where they come from: if they belong to a neighbour, it is a boundary dispute; if they never had a registered owner, the route may be regularisation of title.

My land measures less than what the deed says. Is it worth rectifying?

Almost always yes, even if it stings. An inflated registered area blocks sales, valuations and loans, and passes the problem on to the buyer or the heirs. Also, if the difference is because a neighbour occupies part of the property, the longer it goes on the worse your position gets.

Do I need the neighbours to sign?

It depends on whether the rectification could affect them. If it just updates the description of a boundary that does not move, usually not. If the adjustment shifts a line, then yes, and without their involvement the Conservador is likely to object, or the rectification will be left open to challenge later.

Will any plan do?

No. You need a survey carried out by a qualified professional, georeferenced, that lets you compare the measurements against the title's description. A sketch or an old plan without coordinates will not support a rectification.

What if the property comes from a purchase of shares and rights in an undivided estate?

There the problem comes earlier: there is no individual property to rectify, only a share in a larger property. You first need to exit the co-ownership, and that is covered in the guide to shares and rights in an undivided estate.

How long does it take?

It depends on the route. A deed of rectification with a plan is a matter of weeks if the title is clear. The judicial route takes months. The administrative route depends on the Municipal Building Department. That is why the choice of route is made after the title study, not before.

Does this work for subdividing?

No, they are different things. Rectifying means making the paper correctly describe the property that already exists. Subdividing means creating new properties, with their own rules depending on whether they are rural or urban, and that is covered in the guide to subdivision. What does happen often is that you need to rectify before you can subdivide.

How we handle this

We start with the title study and the survey, in that order, because measuring without knowing what the registration says produces a nice looking plan that is useless. The survey is done by our own team of surveyors, so we compare what is measured against what is registered internally, without going back and forth between offices.

With that we decide the route, and that decision is what saves time and money: there are cases that get resolved with a deed, and others where insisting on deeds just wastes months before ending up in court anyway.

We handle the registration side from the title study, regularisation when the difference comes from ownership that was never registered from the regularisation area, and any conflict with the neighbour, if there is one, from the litigation area.

Send us the title registration and, if you have it, the plan, and we will tell you whether your case is a rectifiable error, a surface area discrepancy, or a boundary dispute, which are three different problems with three different solutions.