The good or bad faith of the third party ex article 34 of the Spanish Mortgage Law when the possessory situation does not coincide with the information provided by the registry advertising

Abstract

The situation which constitutes the main object of study in this paper may be described as follows: a subject acquires a property trusting in what is published by the Spanish Land Registry and then registers this acquisition. Nevertheless, it may happen that the person who at that moment is in possession of the property as its owner is not the transferor or registered owner. Does this mean that the acquirer must be considered in bad faith, which excludes the application of article 34 of the Spanish Mortgage Law and exposes him to the claim of the verus dominus? In order to answer this question, a selection of existing case law on the subject will be analyzed, the opinions and arguments developed in the doctrine will be discussed, and the considerations that, in the author's opinion, should be taken into account in order to confirm the good or bad faith of the third party when the possessory situation and the registry reality do not coincide will be detailed.