SUMMARY:
Since the adoption of the Torrens system in the Dominican Republic, registered real estate rights have been characterized as imprescriptible. This means that once a property right or ownership is recorded in the Registry, it can only be affected by the owner’s disposition, a mandate from a state authority, or the opening of a succession. This situation implies that it is impossible to acquire such rights through acquisitive prescription (usucapion) if they have been previously registered. Internationally, however, some countries have handled this issue differently, allowing for the prescription of real rights contained in registry entries.
KEYWORDS:
Registered right, registry law, imprescriptibility, Property Registry, acquisitive prescription (usucapion), prescription against the registry (contra tabulas), possession, good faith, registry public faith, re-sanitation, registry entry, registry truth vs. extra-registry truth, mode of acquiring property, legal certainty, extraordinary prescription, registered owner, third-party registrant, hidden encumbrances, usucapion.
As we know, since the establishment of the Torrens system in our legal framework through Executive Order No. 511 to the present day, registered real estate rights have been considered imprescriptible[1]. This means that once a property is incorporated into the Torrens system through the sanitation process[2], it can only be transferred through a title. From this, it follows that possession as a mode of acquiring registered property—i.e., prescription against the registry (contra tabulas)[3]—is excluded from our legal system.
The imprescriptible nature of previously registered rights implies that possession (in fact) is insufficient to acquire ownership, even if it is public, peaceful, unequivocal, and uninterrupted. The fundamental reason for this characteristic lies in the value our system places on registry inscription, known as registry public faith[4], combined with the principle of publicity[5]. Based on this, we assert that our legal system presumes that the person appearing in the Registry as the registered owner is the de facto possessor of the property.
Principle IV of the Declaration of Principles in Law No. 108-05 on Real Estate Registry states: “Every right registered in accordance with this law is imprescriptible and enjoys the absolute protection and guarantee of the State”[6]. This clearly assigns an imprescriptible character to real estate rights once registered. The effect is that those who have duly registered their rights will enjoy the protection provided by the system.
In many cases, this results in a pronounced disconnect between the information publicized by the Registry and extra-registry reality[7]. Additionally, it hinders real estate transactions involving imprescriptible entries registered in favor of individuals who, in some cases, have died[8] without leaving any heirs qualified to inherit such properties. On this matter, Dr. Iñigo Mateo y Villa, a Spanish Property Registrar and scholar, notes that advocating for the imprescriptibility of registered real estate rights would lead to countless properties in downtown Santo Domingo being excluded from commerce, making it impossible for anyone to ever own them[9].
THE IMPRESCRIPTIBILITY OF REGISTERED REAL ESTATE RIGHTS UNDER LAW 108-05 ON REAL ESTATE REGISTRY
Principle IV of Law No. 108-05 on Real Estate Registry unequivocally states: “Every registered right[10] in accordance with this law is imprescriptible[11] and enjoys the absolute protection and guarantee of the State”[12]. This implies that not only the principal real right of ownership falls under this provision but all rights registered under said law. In other words, any entry in the Registry is imprescriptible, and its cancellation or modification can only arise from a court order or the voluntary act of the registrant.
In this regard, the Dominican Civil Code recognizes prescription as a mode of acquiring property, but this applies only to unregistered properties, as the Real Estate Registry Law has implicitly repealed provisions related to possession for registered properties. This does not negate the legal relevance of possession for establishing good faith. Thus, as Hernández Perera points out, registered properties are not “possessed” but “occupied,” and such occupation does not generate any prerogative over time[13].
As Hernández Perera further explains[14], under our legal system, possession of registered land does not generate rights, nor can occupants benefit from the prescription established in Article 2262 of the Civil Code. This holds true even if the property appears abandoned by its owner. As ruled by the Third Chamber of the Supreme Court of Justice in Judgment No. 28 of February 20, 2013 (B.J. No. 1227), “holders of duly registered rights cannot be deprived of them through occupations, the precariousness of which is definitive, regardless of the duration of occupation or the presence of improvements on the property.”
For this reason, the possibility of acquiring registered rights through acquisitive prescription has been expressly barred. This implies—in our view, excessively—the protection of real estate rights registered under Law No. 108-05. While we acknowledge the need to protect real estate transactions, this should not come at the cost of excluding registered properties from commerce when there is no legal entity to dispose of them, thereby fostering improper practices.
Despite the legal framework, the admissibility of prescription against registered entries is entirely justifiable from a constitutional perspective[15], as the right to property entails social obligations. While the Registry’s primary function is to publicize registered rights, publicity is also manifested through public, peaceful, unequivocal, and uninterrupted possession. Thus, accepting prescription against the Registry does not undermine the protection provided by the Public Registry but rather dynamizes it, recognizing that property entails social obligations[16].
PRESCRIPTIBILITY OF REGISTERED REAL ESTATE RIGHTS UNDER THE SPANISH MORTGAGE SYSTEM
Internationally, the imprescriptibility of registered real estate rights has been handled differently. For example, in Spain, de facto possession is a mode of acquiring property through acquisitive prescription, even if the property has been previously registered. Scholars in that jurisdiction argue that this constitutes “a clear exception to the principle of registry public faith, which maintains that a third party’s acquisition will be upheld even if the right is later annulled or resolved due to causes not reflected in the Registry”[17].
This prescription against the Registry, or contra tabulas, has been considered by Spanish legislation as a mechanism to align extra-registry reality with registry entries. The Preamble to the Mortgage Law states that “resolving the complex problem of balancing prescription and the legally unassailable value of registry entries has been no easy task”[18].
The starting point is the legally unassailable—imprescriptible—value of registry entries and a fair equilibrium between prescription and the Registry.
The Preamble to the Spanish Mortgage Law states, quite significantly, that “doctrinal perfection—the imprescriptibility of real actions derived from registered rights, which strengthens registration under the principle of registry public faith—must be subject to pertinent exceptions to maintain proper alignment between reality and the Registry”[19].
From this, it follows that the Property Registry’s primary objective should be publicity—real publicity, not divorced from on-the-ground realities beyond registry publicity. The goal should be for Registry information to align with extra-registry reality, with the exception being cases where Registry publicity does not match reality[20].
As expressed in the Preamble to the 1944 Mortgage Reform, the registry principle is the imprescriptibility of real rights derived from registration, not usucapion against the Registry[21]. Rather, the latter is framed as an exception to imprescriptibility, which otherwise strengthens registration.
Certainly, the imprescriptibility of registered real estate rights provides robust protection. However, in our legal system—where registered rights are absolutely imprescriptible—there is a growing disconnect between extra-registry reality and registry entries[22]. This raises research questions about the relevance or efficacy of making registered real estate rights imprescriptible.
The Preamble further states, after emphasizing the importance of prescription and the imprecision of its regulation: “Strengthening the system while maintaining the indispensable parity between registry entries and legal truth is the goal of the new formula”[23].
It continues:
“Accepting it without reservation would open a dangerous breach in the system. Rejecting it—the inadmissibility of prescription against the Registry—would perpetuate a fictitious situation and a complete disconnect between the Registry and extra-registry truth”[24].
As García García, a Spanish Property Registrar, notes, from the perspective of legal certainty in real estate transactions, one must ask: “What is truth? The truth of the negligent usucaptor who ignored the officially published registry status for years? Or the truth of the third-party buyer in good faith who acquires from the registered owner?”[25]
In this regard, citing equity, La Rica[26] argues that the registered owner—for purposes of good faith—must investigate extra-registry possessory status. Similarly, the usucaptor should be obligated to know the legal status of the property they seek to acquire through prescription. Given the existence of a public office like the Property Registry, the prospective usucaptor could and should have consulted it.
Similarly, scholars like García García argue that the supposed good faith of a usucaptor against registry pronouncements is tainted by obvious negligence or gross fault, as the usucaptor had rational means and sufficient motive to know the property they improperly possessed belonged to another, applying the same standard as for third-party registrants.
In our view, while it is true that the usucaptor should be aware of a publicly registered status, it is equally true that the registered owner has an obligation to exercise their property rights. However, it is not rationally possible to compare these figures—prescription against the Registry and third-party buyers in good faith—as it would be questionable to label a third-party registrant as acting in “good faith” if they purchased without knowing the de facto status of the property. The reality is that no one buys what they do not inspect (physically)[27].
Porcioles, former Director General of Registries and Notaries in Spain and a key architect of the 1944-1946 mortgage reform, asks: “Should a person who prescribes against a registry status be considered to act in good faith?”
However, we argue that the fundamental debate should not center on good or bad faith but rather on the efficiency of the Property Registry. What matters, in essence, is the social function of property rights, to the point of imposing obligations. How efficient is a system that makes registered property rights imprescriptible when the registered owner—the one appearing as such in the Registry—fails to pay taxes, visit the property, or maintain it? Does perpetually preserving this right truly make a Property Registry efficient?
In registry systems like ours—the Dominican system—the registered owner can rest assured, as they enjoy the highest possible protection under the system (imprescriptibility): no one can deprive them of their ownership through ordinary or extraordinary acquisitive prescription[28], unless another party gains access through a title presented to the Property Registry, which is “impossible”[29].
CONFIGURATION OF ACQUISITIVE PRESCRIPTION AGAINST THE PUBLIC REGISTRY
Despite the above considerations, we must analyze the conditions that, in an ideological framework, a possessor should meet to acquire ownership. The type of prescription we have discussed—against the Registry or extraordinary—should include, illustratively but not exhaustively, the following requirements:
a) The usucaptor must assume the obligations inherent in the constitutional conception of property rights[30].
b) Provided there is no existing legal relationship between the usucaptor and the registered owner (or their heirs or successors) evidencing the nature of their occupation.
c) Provided the usucaptor has maintained peaceful, public, unequivocal, and uninterrupted possession as an owner for thirty (30) years (extraordinary prescription).
Nevertheless, we must recall that the principle of registry public faith remains latent, and the rule is that the registered owner enjoys the system’s protection. It is the owner who has neglected their property who may be affected by the prescription of their rights. The assessment of the registered owner’s good faith will be left to the judge, who will determine, based on evidence, whether they had rational means to know.
In our law—Dominican law—the imprescriptibility of registered real estate rights has been the rule from the outset. Transforming real estate legislation after a century to perfect the system in this regard is highly delicate. Both in our registry system and in the Spanish mortgage system, modifying real estate legislation would be required. Even in Spain, regarding the issue of prescription against the Registry, conflicts and antinomies persist concerning the governing legislation[31] in this regard[32].
The imprescriptibility of registered real estate rights hinders and damages the dynamism of the Public Registry. Over time, the Public Registry publicizes information about properties with no registry activity—for whatever reason—creating a growing disconnect between extra-registry reality and registry reality. This could be resolved—as the Mortgage Law has done—by ensuring that property rights are not merely unassailable but also entail real obligations.
Ultimately, this is a step the Dominican real estate registry system has yet to take and is unprepared to take, despite prior legislative attempts at modification[33]. However, to achieve this, we agree that—as a prerequisite—other milestones must first be reached, sine qua non for our registry system to take this leap. These include, for example:
a) Strengthening the protection system for registered real rights through strong support from the Public Ministry in real estate jurisdiction as a mechanism to vindicate property rights.
b) Strengthening the notarial function through the application of a consequences regime.
c) Strengthening the registry function through training, registry access modalities, the application of a consequences regime, among others.
BIBLIOGRAPHY
LAWS
Dominican Republic. Law No. 108-05 on Real Estate Registry, dated March 23, 2005, published in Official Gazette No. 10316 on April 2, 2005, amended by Law No. 51-07 of April 23, 2007, published in Official Gazette No. 10416.
Spain. Decree of February 8, 1946. Mortgage Law.
Spain. Mortgage Law Reform of December 30, 1944. Preamble.
JURISPRUDENCE
Dominican Republic. Third Chamber of the Supreme Court of Justice. Judgment No. 267, dated May 11, 2016. Presiding: Manuel Ramón Herrera Carbuccia.
DOCTRINAL SOURCES
AMOROS GUARDIOLA, Manuel. Preamble to the Law of December 30, 1944, on the Reform of the Mortgage Law. Accessed: April 6, 2018. Available at: https://app.vlex.com/
AZPIAZU RUIZ, Julio. Footnotes to Some Comments. Prescription and the Registry: Does Ordinary Prescription Apply Against the Registered Owner? Accessed: April 7, 2018. Available at: https://app.vlex.com/
GARCÍA GARCÍA, José Manuel. Commentary on Article No. 36 of the Spanish Mortgage Law. Accessed: April 7, 2018. Available at: https://app.vlex.com/
HERNÁNDEZ PERERA, Yoaldo. On Possession and Registered Properties. (Online). Accessed: April 6, 2018. Available at: http://yoaldo.org/?paged=6
MATEO Y VILLA, Iñigo. Participation in an interview conducted by the Foundation for Institutionality and Justice Inc. (FINJUS) (Video). Accessed: April 6, 2018. Available at: https://www.youtube.com/, published on January 12, 2016.
MENÉNDEZ HERNÁNDEZ, José. Prescription and Legal Certainty. (Online). Accessed: April 6, 2018. Available at: https://app.vlex.com/
LA RICA Y ARENAL, Ramón. Mortgage Meditations. Good Faith and Registry Publicity. Accessed: April 6, 2014. Available at: https://app.vlex.com/
PORCIOLES Y COLOMER, José María. Prescription and the Property Registry. Accessed: April 6, 2014. Available at: https://app.vlex.com/
ROCA SASTRE, Llúis. Mortgage Law. 6th Edition. Spain, 1968.
RODRÍGUEZ DE ALMEIDA, María Goñi. Definitive Repeal of Article 1949 of the Civil Code: The Application of Mortgage Regulation in Usucapion Against the Registry. (Online). Accessed: April 6, 2018. Available at: https://app.vlex.com/.
SANZ FERNÁNDEZ, Jesús. Institutions of Mortgage Law. Spain, 1947.
[1] Despite attempts to modify Principle IV of Law No. 108-05 to apply acquisitive prescription to registered real estate rights, such as the Draft Bill Approving the National Strategy for Property Titling, Creating the National Real Estate Registry Office, and Amending Law No. 108-05 on Real Estate Registry, presented during the presidential inauguration of Lic. Danilo Medina in August 2012.
[2] Known internationally as first registration.
[3] Prescription against the Registry (contra tabulas) refers to the possibility, in some international legal systems, of acquiring property through acquisitive prescription even if it has been previously registered, provided there is public, peaceful, and uninterrupted possession.
[4] A third party who contracts based on Registry information will be upheld in their acquisition.
[5] Article No. 90, Paragraph II of Law No. 108-05 on Real Estate Registry states: “For properties registered under this law, there are no hidden rights, charges, or encumbrances not duly registered, except those arising from the Water and Mining Laws.”
[6] Dominican Republic. Law No. 108-05 on Real Estate Registry, dated March 23, 2005, published in Official Gazette No. 10316 on April 2, 2005, amended by Law No. 51-07 of April 23, 2007, published in Official Gazette No. 10416.
[7] GARCÍA GARCÍA, José Manuel. Commentary on Article No. 36 of the Spanish Mortgage Law. Accessed: April 7, 2018. Available at: https://app.vlex.com/#WW/vid/231980
[8] This includes vacant successions or unclaimed successions.
[9] Dr. Iñigo Mateo y Villa’s participation. Interview conducted by the Foundation for Institutionality and Justice Inc. (FINJUS) (Video). Accessed: April 6, 2018. Available at: https://www.youtube.com/, published on January 12, 2016.
[10] Except as provided by Article 127 of the General Regulation of Title Registry (Resolution No. 2669-2009), which states: “Preventive annotations and provisional registrations expire when their validity period lapses or the underlying right is extinguished, upon request by an interested party, unless otherwise provided by Article 54 of the Civil Procedure Code.” (Emphasis added).
[11] This raises the question of the efficacy of making a Public Registry absolutely imprescriptible. Some rights, by their nature, should be prescriptible, such as provisional judicial mortgages, which the Civil Code deems prescriptible. These should not create permanent oppositions but rather anticipate future events. If such events do not occur within the stipulated time, their effects should be suspended. However, the Supreme Court of Justice has consistently held that “while the referenced legal text establishes a three (3)-year renewal period for mortgages, this applies only to properties not subject to cadastral registration, not when the mortgage is registered on cadastrally registered properties, as they benefit from the imprescriptibility enshrined in the Real Estate Registry Law.” (S.C.J. Judgment No. 267, May 11, 2016).
[12] Dominican Republic. Law No. 108-05 on Real Estate Registry, dated March 23, 2005, published in Official Gazette No. 10316 on April 2, 2005, amended by Law No. 51-07 of April 23, 2007, published in Official Gazette No. 10416.
[13] HERNÁNDEZ PERERA, Yoaldo. On Possession and Registered Properties. (Online). Accessed: April 6, 2018. Available at: http://yoaldo.org/?paged=6
[14] Ibid.
[15] The State recognizes and guarantees the right to property. Property has a social function that entails obligations. Everyone has the right to the use, enjoyment, and disposal of their property.
[16] These obligations include exercising the right so that it is recognized not only by the system but also by other citizens.
[17] MENÉNDEZ HERNÁNDEZ, José. Prescription and Legal Certainty. (Online). Accessed: April 6, 2018. Available at: https://app.vlex.com/
[18] Spain. Mortgage Law Reform of December 30, 1944. Preamble.
[19] Ibid.
[20] AMOROS GUARDIOLA, Manuel. Preamble to the Law of December 30, 1944, on the Reform of the Mortgage Law. Accessed: April 6, 2018. Available at: https://app.vlex.com/
[21] Prescription against the Registry is equivalent to prescription contra tabulas.
[22] Due to various reasons, such as vacant successions and the stringent requirements for Registry access.
[23] Spain. Mortgage Law Reform of December 30, 1944. Preamble.
[24] Spain. Mortgage Law Reform of December 30, 1944. Preamble.
[25] GARCÍA GARCÍA, José Manuel. Commentary on Article No. 36 of the Spanish Mortgage Law. Accessed: April 7, 2018. Available at: https://app.vlex.com/#WW/vid/231980
[26] LA RICA Y ARENAL, Ramón. Mortgage Meditations. Good Faith and Registry Publicity. Accessed: April 6, 2014. Available at: https://app.vlex.com/
[27] Ibid.
[28] Ordinary prescription is based on a title and thus requires less time to achieve prescription. Extraordinary prescription, also known as prescription contra tabulas, is based solely on public, peaceful, and uninterrupted possession for 30 years.
[29] Except in cases of forgery.
[30] Economic, tax, maintenance, and other obligations.
[31] Indeed, Article 36 of the Mortgage Law cannot be the antithesis of Article 32. If unregistered titles of ownership or real rights cannot prejudice a third party who has registered, as established in Article 32, it is unclear why the legislator would establish the opposite principle in Article 36, particularly regarding an acquisitive title like usucapion, which cannot be considered superior to others but rather the opposite, as it is based on a defective or even null title and sometimes defective possession.
[32] Article 36 vs. Article 32 of the Spanish Mortgage Law.
[33] Draft Bill Approving the National Strategy for Property Titling, Creating the National Real Estate Registry Office, and Amending Law No. 108-05 on Real Estate Registry, presented during the presidential inauguration of Lic. Danilo Medina in August 2012.
