1. The protection of real estate advertising is entrusted to the Property Registrars. These have the double consideration of legal professionals and public officials. As civil servants, they are admitted to the exercise of the public function entrusted under an enabling administrative title ( admission ). They articulate their work by qualification the titles presented for registration and advertising work. They do so independently since they are not subject to instructions from the Administration, nor can they consult it about their specific exercise (Mortgage Law, article 18). They are not inserted in the administrative structure. They are not subject to a hierarchical relationship concerning the former general Directorate of Registries and Notaries. ; they are only limited to their powers of inspection and available service ordering. On the other hand, they do not receive their remuneration from public budgets. According to their criteria, they organize the registry office and are employers of those who provide their services in them. They are, in short, what has been called functional officials, only to the extent that they exercise the public functions entrusted to them.
2. The liability regime for damages caused by Property Registrars in the exercise of their functions is contained in article 296 et seq. of the Mortgage Law. Under their determinations, the Registrars are liable for these damages according to civil liability rules, discussing whether it is contractual or non-contractual liability. His claim is substantiated before the civil jurisdiction. Articles 88.2 and 105.4 of the General Collection and Collection Regulations of Social Security are pronounced in the same sense.
They are faced with the clarity and forcefulness of the provisions, as mentioned earlier. The scientific doctrine has been affirming, for years now, that the damages caused by the Property Registrars in the exercise of their functions can be claimed before the General Administration of the State based on the regime of patrimonial responsibility of the Public Administrations (Law 40/2015, article 32). They allege that the Land Registry is a public service; the Registrar, a public official; the act of qualification, an administrative act, and, finally, the registry, an administrative body.
3. The system of patrimonial responsibility of the Public Administrations has its main rule in article 32 of Law 40/2015, of October 1. But it does not end with him. It is integrated with numerous other special regimes, applicable to specific areas. The precept, as mentioned above, has the character of a general closing clause, which yields to the existence of these specific public compensation schemes. It is only applicable when there is no specific mechanism. What limits the application of the public compensation system – both general and specific – is the inclusion of the cause of damage in the administrative organization. Those caused by those who do not do so even when they exercise functions or carry out public activities – such as concessionaires, contractors,
4. The doctrinal insertion of the registry activity in the administrative one operated has had consequences in conceiving and incardinating the responsibility of the registrars. And, in particular, of coordinating it concerning the patrimonial of the Administration. There have been three forms or interpretations given:
A) One considers that the liability regime of the registrars for all their actions is civil, under article 396 of the Mortgage Law. The regulatory norms of the patrimonial responsibility of the Public Administrations do not apply to them, since the regime established in the law above is considered unique concerning the general content in article 32 of Law 40/2015, of October 1, given account the administrative nature of the registry function and the status of the public official of the Registrar.
B) A second conception, opposed to the previous one, affirms that all the damages caused by the registrars in the exercise of their functions -whatever their nature- must be claimed by the interested parties before the Public Administration based on the regime of patrimonial responsibility (Law 40/2015, article 32). This interpretation results from understanding that the registrars are -exclusively- public officials and the registry, a public service. Therefore, claims for damages must be filed with the Ministry of Justice and substantiated through the administrative procedure provided for this. Article 296 and following the Mortgage Law must be understood as repealed.
C) The third way of articulating the registrars’ responsibility and the Public Administration’s patrimonial responsibility combines both positions. It is necessary to distinguish between two administrative bodies -the Registrar and the registry- and two different functions -qualification, typical of the former, and instrumental or auxiliary operations, of the latter-. The Council of State has said in various opinions –since 940/99, of October 21, 1999-.On this distinction, it is said that the civil liability regime established in the Mortgage Law is applicable in the case of damages caused by the registrars in the exercise of their qualifying functions -and some related- and the administrative one in the event of damages caused. For the operation of the property registry.
5. The positions exposed and supported by scientific doctrine, administrative practice, and jurisprudence lack a legal basis. Against them, it should be emphasized that the regime established in the Mortgage Law (article 296 and following) is not repealed, despite the multiple occasions that the Legislator has had to do so on the occasion of the various reforms carried out in the regulation. On the contrary, its content is ratified by the regulatory provisions initially mentioned. Therefore, this precept must be applied. It cannot be bypassed under convoluted doctrinal conceptions. Its scope is specifically defined: the damages caused by the registrars in the exercise of their functions and not merely those arising from the qualifying function.
The positions that invoke the application of the administrative regime are the result of an inadequate interpretation of the legal concepts of public service, public official, and administrative body. And, finally, the result of an outdated conception of administrative law as an organically or subjectively defined system – in general as statutory law of Public Administrations – that does not adjust to reality.
Public service can be considered subjectively or objectively. Firstly, the public service is defined as an activity carried out by the Public Administration, either because it is legally reserved in its favor (strict sense) or even when it is not. One of its characterizing features is the insertion of the provider in the administrative structure, either directly or indirectly (indirect modes of management), being subject to the instructions and dependence on him. Objectively, public service is an activity of public interest or general interest, which individuals can carry out.
Nor is the notion of public official unique. It includes various species from that of the strict official, characterized by providing professional services permanently to the Public Administration. And they are receiving their remuneration from public budgets to the more labile, of a criminal nature, which defines it by the simple exercise of public functions, without need for any organic link. Between the two, the system outlines other intermediaries, among which is that of those who, by an enabling administrative title, carry out an activity of public interest without being integrated into the organizational structure.
Lastly, the notion of the administrative body has laboriously evolved to be configured primarily as a bundle of competencies – objective, territorial, and hierarchical delimited – developed by a head who has, where appropriate, some auxiliary means to do so always inserted in the state structure.
The registration function is not a public service in the subjective sense. It is not reserved by law to the State. Registrars exercise a part independently (Mortgage Law, art. 18). They are not integrated into the Administration. They are not civil servants in the written sense. The functions performed are attributed to them and not to the abstract, different and non-existent body. They acquire the capacity to exercise them by an administrative authorization ( the admission ). But this does not involve the transfer of their exercise in their favor from the Administration but the acquisition of some that the law recognizes as their own. In other words, they are not administrative vicars – like the concessionaires – but authorized under a specific modality of these: admission.
In short, the registrars exercise public functions independently under an enabling administrative title –admission- that does not include them in the organizational structure. On the other hand, the registration publicity function is not qualified by law as a public service in the subjective sense. Therefore, they lack the budgets, requirements, and inexcusable conditions for applying the public responsibility regime established in article 32 of Law 40/2015, of October 1. Hence, they are excluded from its scope of application.
Faced with artificial doctrinal and jurisprudential constructions, the rule of law demands respect. And this is specified in that claims for damages caused by registrars in the exercise of their functions must be resolved before the ordinary jurisdiction under the rules of civil liability as established in articles 296 and 303 of the Mortgage Law.