[jamesden]

We are are trying to buy a detached property with land ,the solicitor organised a survey of the boundaries and the report found only aprox half the land is registered with the property, the rest has the owner missing or not traceable ,

the access to the property is across this unregistered  land, is this situation common in the malaga region , and are there safe ways to protect ourselves from future  claims by the missing / not tracable person

[Mark Stücklin]

James, regular legal contributor to this website Raymundo Larraín kindly emailed me his thoughts on your question.

I understand they are querying access to their property from an adjacent plot of land belonging to someone else.

In Law every (rural) plot must be granted access even if that entails access from an adjoining plot of land. This is called “servidumbre de paso” or right of way.

The owner of the adjoining plot must tolerate neighbours crossing his land to gain access to their own property.

Rights of way can be apparent or not.

In my article How to Buy Rural Property in Spain I specifically mention this case:

3. Are There Charges, Encumbrances, Liens or Debts Against the Property?

Self-explanatory. Any debts go against the property itself, not against the owner i.e. an outstanding mortgage would be a financial lien against the property. Any debts or charges become the responsibility of the new owner. This is why it is the conveyancer’s duty of care to ensure a Title deed is passed over free and clear of charges, encumbrances and debts. Deed restrictions create limitations or obligations on the property use that a would-be buyer should be made aware of prior to acquiring the land.

Rural property abounds with easements unlike its urban counterpart due to its very nature. Common examples:

• Right-of-way: adjoining plots of land may have a lien to facilitate access to a neighbour’s property. Another example; Shepard’s may have a right (consuetudinary law) to enter your property at certain times of the year to herd their flock (transhumance)

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