Land and commerce registry as an instrument for sustainability expert's corner report.
Date: 2003-08-14
Institutions: European Environment Agency
Subjects: environmental monitoring, environmental protection, land register, registration of a company, sustainable development

1

Technical report

88

Land and commerce registry as an
instrument for sustainability

Expert‘s corner report

Prepared by the Professional Association of
Land and Mercantile Registries of Spain

Project Manager: José-Luis Salazar-Máñez
European Environment Agency

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Land and commerce registry as an instrument for sustainability

Cover design: Rolf Kuchling, EEA
Layout: Brandenborg a/s

Note

The contents of this publication do not necessarily reflect the official opinions of the European 
Commission or other European Communities institutions. Neither the European Environment Agency 
nor any person or company acting on the behalf of the Agency is responsible for the use that may be 
made of the information contained in this report.

The EEA’s Experts’ corner reports

The European Environment Agency (EEA) is mandated to provide information to the Community and 
the Member States, that will help them to identify, frame, implement and evaluate policies, legisla-
tion and other measures on the environment, and to keep the public properly informed about the 
state of the environment.

In order to provide possible inputs to the developing work programme of the EEA, and to stimulate 
debate on issues that may contribute to the identification, framing and evaluation of environmental 
policy measures, the EEA, from time to time, asks independent experts to summarise their views on 
topical or upcoming issues, so that the EEA can consider publishing them as Experts’ corner reports. 

Experts’ corner reports do not necessarily reflect the views of the EEA, or of any other EU institution: 
they are the opinions of the author only. However, they are intended to facilitate the broader dissem-
ination of more recent environmental information that may provide useful inputs into the developing 
environmental agenda. The EEA hopes, therefore, that they will be of interest to the Community, 
Member States and other environmental stakeholders, whose comments on the contents it would 
welcome. 

A great deal of additional information on the European Union is available on the Internet.
It can be accessed through the Europa server (http://europa.eu.int).

© EEA, Copenhagen, 2002

Reproduction is authorised provided the source is acknowledged

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ISBN: 92-9167-500-8

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Internet: http://www.eea.eu.int

Preface

Preface

3

No matter what the organisational model it 
adheres to, the institution of the land registry 
was created to endow real estate trade with 
legal certainty in immovable property 
transactions. It does this by providing a kind 
of disclosure that has legal effects and by 
reporting tabulated records of information 
that have duly passed a screening process to 
gain access to the registry.

But, in addition to performing their essential 
function, with the passage of history, land 
and mercantile registries have assumed a 
position in centre stage as a coadjutant 
instrument for achieving other goals that are 
just as essential to the community. Registries 
cooperate in enforcing certain structural 
and/or sector-specific policies, for example, 
in the fields of agriculture, urban 
development and the environment. This 
report explores areas where the EEA and the 
Land and Mercantile Registries can engage 
in reciprocal cooperation, as their fields of 
action partially coincide, and since land is 
one of the basic aspects of environmental 
measures.

The Association of Land and Mercantile 
Registrers of Spain, acting as the developer 
and coordinator of the European Network of 
Land Registrers coordinated this report. It 

assigned the task of directing the study to two 
members of its governing board, Pilar García 
Goyeneche and José María Alfín, and named 
Mataró registrar, Mariano Va Aguaviva, 
coordinator of the papers.

Other registrars have also participated 
actively in the study’s preparation with their 
personal contributions: Fernando Méndez, 
Santiago Lafarga, Vicente José García 
Hinojal, Marta Valls, Mercedes Tormo, Luis 
Alfredo Suárez, Antonio Giner, Jorge 
Requejo, Manuel Ballesteros, José Antonio 
Rodríguez del Valle and José Simeón 
Rodríguez, Juan María Díaz Fraile, Javier 
Lardies, Joaquín Larrondo, Enrique 
Mariscal, José Ignacio Martín, Nicolás 
Nogueroles, Plácido Prada and Jesús Santos 
have also cooperated. I would like to thank 
them all on behalf of the corporation for the 
pains they have taken to throw light on this 
important subject, an area where the 
Professional Association of Land and 
Mercantile Registrars of Spain and the 
European Environment Agency have 
undertaken a cooperative arrangement that 
will surely prove fruitful in the future.

Mariano Va Aguaviva
Coordinator, Registrar, Mataró Land Registry 
Number 1, Mataró, Barcelona

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Land and commerce registry as an instrument for sustainability

Contents

Summary  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

5

1.

Introduction  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
1.1. Land registry as an environmental information office  . . . . . . . . . . . . . . . 
1.2. Emission right trading . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
1.3. Land registry as a provider of land rights  . . . . . . . . . . . . . . . . . . . . . . . . 

2. The land registry as a means of environmental prevention  . . . . . . . . . . . . . . . 
2.1.  Environmental legislation and registry gatekeeping . . . . . . . . . . . . . . . . 
2.1.1. Registry systems as transaction cost reducers . . . . . . . . . . . . . . . . . . .
2.1.2. The gatekeeper: Notion and requirements for its effectiveness 

as a law enforcer   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.1.3. Requirements for gatekeeper effectiveness  . . . . . . . . . . . . . . . . . . . .
2.2. Land registry and environment  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
2.3. Registry reporting of environmental limitations  . . . . . . . . . . . . . . . . . . . 
2.3.1. The land registry and environmental disclosure   . . . . . . . . . . . . . . . . .
2.3.2. Mode of recording environmental situations in the land registry  . . . .
2.3.3. The registry office and reporting of its contents  . . . . . . . . . . . . . . . . .
2.3.4. Conclusion  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.4. The registrable title   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
2.4.1. Administrative title documents  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.4.2. Documents signed by private persons with the formalities required 

by Member State legislation  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.4.3. Judicial document  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7
9
9
10

12
12
12

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15
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24
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25
26

28
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3. The land registry as a medium for guaranteeing punitive measures in the 

environmental realm   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

32

4. The registry office and environmental information   . . . . . . . . . . . . . . . . . . . . . 
4.1. The land registry as an environmental information office  . . . . . . . . . . . . 
4.1.1. Introduction  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.1.2. The registry office   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.1.3. The need to extend environmental information  . . . . . . . . . . . . . . . . .
4.1.4. Use of the registry office as an environmental information office . . . .

4.2. The environmental information associated with image databases 

of properties in the land registry   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
4.2.1. Data-processing application   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.2.2. Fundamental phases of incorporation . . . . . . . . . . . . . . . . . . . . . . . . .

5. Suggestions for possible applications   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

36
36
36
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39
40

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44
44

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6. Environmental law and the mercantile registry   . . . . . . . . . . . . . . . . . . . . . . . . 

46

7.

International aspects of environmental information . . . . . . . . . . . . . . . . . . . . . 
7.1. Environmental information and its community perspective   . . . . . . . . . . 
7.2.
International aspects of the initiative  . . . . . . . . . . . . . . . . . . . . . . . . . . . 
7.3. Future outlooks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

8. Expert’s corner findings and action  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
8.1. Findings   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 
8.2. Action to take for the work to continue  . . . . . . . . . . . . . . . . . . . . . . . . . 
8.2.1. There are various levels of action   . . . . . . . . . . . . . . . . . . . . . . . . . . . .

51
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52
53

54
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Glossary of terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

56

Summary

Summary

5

This ‘expert’s corner’ comprises a set of 
coordinated individual papers that propose 
to analyse different aspects of the land and 
mercantile registry as a legal instrument for 
environmental preservation, arranged 
according to the following plan.

1. Introduction

This is a general statement of the issue, 
exploring the land and mercantile registry’s 
function in relationship with the 
environment. What things must be subjected 
to registry disclosure in order to guarantee 
legal certainty and environmental principles. 
The usefulness of the registration office as an 
information office pursuant to Council 
Directive 90/313/EEC of 7 June 1990 on the 
freedom of access to information on the 
environment. Lastly, the introduction points 
out how the real right of easement is an 
excellent way of establishing and 
guaranteeing public environmental 
limitations and environmental limitations 
accorded by private persons under the 
principle of free will. Some of these 
transactions are called ‘emission right 
trades’, to use environmental terminology.

Author: Mariano Va Aguaviva
Registrar, Mataró Land Registry Number 1 
Mataró, Barcelona

2. The land registry as a means of 

environmental prevention

This section comprises several articles:

author stresses the vital importance of 
information for environmental 
protection.

Author: Santiago Lafarga Morell
Registrar, Rosas Property Registry Number 2, 
Girona

2.3. ‘Registry reporting of environmental 

limitations involving concrete, specific 
pieces of property’. This essay studies the 
relationship between environmental 
information as per Directive 90/313/
EEC and the Aarhus Convention and the 
kind of reporting the land registry can 
provide, plus the method for recording 
environmental information in the 
registry’s books and the contents of that 
information.

Author: Vicente-José García-Hinojal López
Registrar, Bisbal Land Registry, Girona; and 
President of the Association of Land 
Registrars of Spain

A paper on a specific, concrete subject.

2.4. ‘The registrable title’. The entire range 
of environmental situations, be they 
limitations, prohibitions, concessions, 
licences, etc., require certain documents 
to be turned in at the registry as proof. 
This paper particularly addresses the 
issues of administrative entitlement, 
judicial entitlement and documents 
signed by private persons pursuant to the 
formalities of State legislation.

2.1. The introductory article entitled 

‘Environmental legislation and registry 
gatekeeping’, which discusses the 
function land and mercantile registries 
perform.

Authors: Marta Valls Teixidó
Registrar, Olot Land Registry, Girona; 
Mercedes Tormo Santonja
Registrar, Barcelona Land Registry Number 
23

Author: Fernando P. Méndez González
Dean and President of the Association of 
Land and Mercantile Registrars of Spain

3. The land registry as a medium for 
guaranteeing punitive measures in 
the environmental realm

Two general essays:

2.2. ‘Land registry and environment’, which 
focuses on how rational land use and 
respect for the environment have had an 
impact on the concept of proprietary 
rights and the administration, the main 
representative of collective interests. The 

While the essential principle of 
environmental protection is prevention, 
punishment must also be employed as a 
subsidiary principle. This paper emphasises 
how land registries help in the task of 
territorial policing, albeit strictly by 
informing people about the penalties the law 
sets for breach of environmental 

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Land and commerce registry as an instrument for sustainability

conservation duties or guaranteeing that 
economic penalties are meted out or 
indemnities are established. Registries’ 
contribution must and can cover the entire 
gamut of activities involved in restoring the 
upset ecological equilibrium, and that 
concept is much broader than the concept of 
just punishing transgressors.

Author: Luis Alfredo Suárez Arias
Registrar, Arenys de Mar Land Registry, 
Barcelona

4. The registry office and 

environmental information

This section features two papers:

4.1. ‘The land registry as an environmental 

information office’. A theoretical and 
practical study that describes the offices 
that are home to the institution of the 
registry. Because of the registry office’s 
characteristics, infrastructure, resources, 
organisation on a territorial basis, human 
resources, etc., it can and ought to be 
optimised to provide environmental 
information in the broad sense and to 
make the citizen/consumer’s right to 
access to environmental information a 
reality.

Author: Antonio Giner Gargallo
Registrar, Sant Feliu de Llobregat Land 
Registry Number 2, and Provincial Delegate 
for Barcelona

4.2. The second paper is more technical in 
nature. It describes how property 
identification by images can be 
incorporated in registries when it is 
properly georeferenced with direct 
location coordinates and complemented 
by the appropriate computer application.

Author: Jorge Requejo Liberal
Registrar, Valladolid Land Registry Number 6

5. Suggestions for possible 

applications

To be implemented in various areas:

(a) experimental test to offer information 
online from land registry offices;

(b) cooperation agreement between the 

Generalitat de Catalunya (autonomous 
regional government of Catalonia) and 
Catalonia land registries enabling 
registries to report environmental 
situations;

(c) cooperation proposal concerning the 
registration institutions of the EU and 
neighbouring countries.

Author: Mariano Va Aguaviva
Registrar, Mataró Land Registry Number 1 
Mataró, Barcelona

6. Environmental law and the 

mercantile registry

This paper posits that the mercantile registry 
is an apt instrument for reporting the 
administrative, judicial and other rules, 
limitations and actions affecting companies, 
because it sets down, for the legal record, all 
the environmental situations or actions it is 
believed ought to be disclosed. The paper 
takes an especially close look at eco-audits. It 
also points out the advantages registry 
reporting would bring to the business of 
emission right trades.

Authors: Manuel Ballesteros Alonso and José 
Antonio Rodríguez Del Valle
Registrars, Barcelona Mercantile Registry

7. International aspects of 

environmental information

After an introduction to environmental 
information and its Community perspective, 
this paper discusses the relations with other 
registration institutions of the EU and some 
neighbouring countries, established on the 
occasion of the experts’ corner to report on 
the start of work and to gather information 
and commentary.

8. Expert‘s corner findings and action

9. Glossary of terms

Explanations have been proposed to help 
give a better understanding of the most 
frequently used legal terms.

In addition to the authors cited above, the 
following registrars have contributed in 
meetings, discussions, proposals and 
solutions: Juan María Díaz Fraile, Javier 
Lardiés, Joaquín Larrondo, Enrique 
Mariscal, José Ignacio Martín, Nicolás 
Nogueroles, Plácido Prada and Jesús Santos. 
The governing board of the Professional 
Association of Land and Mercantile 
Registrars of Spain appointed its members 
Pilar García-Goyeneche and José María Alfin 
Massot to manage the experts’ corner and 
Mariano Va Aguaviva as its coordinator.

Introduction

7

1. Introduction
Mariano Va Aguaviva, Land registrar

The environment, the land registry and the 
mercantile registry are directly related:

are directly involved, among which we 
propose the following:

(cid:127) The basic components of the biosphere 
and constituents of the environment, 
strictly speaking, are air, water and earth. 
Earth or land is a mosaic of pieces of 
property or real estate that form the basis 
on which the land registry is organised and 
whose proprietary title is what the land 
registry deals with. In fact, that portion of 
delimited land or territory that belongs to a 
titled proprietor is what we mean by 
‘property’.

(cid:127) The land registry is an institution whose 

purpose is to imbue the trade in immovable 
property with certainty by reporting who 
owns immovable property and what 
burdens are on it. For a wide variety of 
reasons of environmental origin, there are 
limitations on rights that must be disclosed 
at the land registry, not only to guarantee 
the certainty of trade, but also to ensure 
environmental protection, whose basic 
principle is prevention, and prevention 
requires proper information.

(cid:127) Land registries are public offices, and they 
exist all over the European Union. Because 
of their handy location near citizens and 
their sphere of competence (immovable 
property, information, legal certainty), they 
are especially promising targets for 
optimisation as general environmental 
information offices, if equipped with the 
proper georeferenced image bases to 
define the different layers of environmental 
information to be made available to citizens 
under Council Directive 90/313/EEC of 7 
June 1990.

(cid:127) Mercantile registries or registries of 

commerce are institutions that also hold a 
brief for legal certainty and disclosure. 
They are regulated under uniform criteria 
throughout the EU, because they have 
been adapted to directives.

Let us trace out the relationship between the 
mercantile registry’s reporting of corporate 
information and the reporting of certain 
environmental matters wherein companies 

(cid:127) Eco-auditing and environmental 

certification (ISO No 14001, 17025 and 
EMAS). Today, these are normally 
voluntary procedures, but they are 
increasingly becoming a commercial need. 
Good environmental management is 
beginning to be a synonym for good 
economic management, greater access to 
credit, lower insurance rates, better brand 
image, etc.

(cid:127) Emission right trading and sales. Although 
emission right transactions are already 
properly reflected in business accounting 
procedures, they are still so important as to 
merit special treatment in the method of 
their reporting and, in short, special 
treatment from a special registry (the 
chattel goods registry) that can record the 
ownership, encumbrance and transfer of 
rights that have no readily apparent 
proprietor.

A brief explanatory exposition of the above 
points leads us to the following 
considerations:

The European Union is based on the 
principle of the rule of law (Treaty on 
European Union, Article 6) and has as its 
objective to maintain and to develop the 
Union as an area of freedom, security and 
justice (Treaty on European Union, Article 
2.4). Legal security is not only an objective 
but also a requirement in order to be able to 
meet the rest of the Union’s objectives, 
particularly economic and social progress 
(Article 2.11).

This requirement — legal certainty — is so 
thoroughly tested in practice and analysed in 
theory that it needs no detailed 
demonstration here. Let us just mention that 
in 1993 the Swedish Academy gave the Nobel 
Prize in Economic Sciences to two economic 
history professors, North and Fogel. 
According to the Academy, ‘Innovations, 
technical changes and other factors that are 
generally regarded as explanations, are not 
considered to be sufficient by North. They 
are themselves a part of the growth process 

8

Land and commerce registry as an instrument for sustainability

and cannot explain it. Effective economic 
organisations are the key to economic 
change’.

In his 1990 book, Institutions, institutional 
change and economic performance, North 
analyses the fundamental issue of why some 
countries are rich and others are poor, even 
when they have abundant natural resources. 
‘Societies that display greater relative 
efficiency in reducing transaction costs, 
defending property rights and enforcing 
contract performance are able to achieve 
greater economic growth than societies that 
are less efficient in this area. The 
contribution of order, stable institutional 
rules and the predictability they contribute 
leads to greater, more stable investment and 
the assumption of risks that, in any other 
environment, would be unacceptable, and 
therefore it makes the economy more 
dynamic’.

Legal certainty requires certainty in the rule 
of law, and it requires disclosure. The law 
creates institutions that are assigned the 
function of providing legal certainty. The 
land registry is one such institution. Its job is 
to give legal certainty to the trade in 
immovable property by means of reporting 
the terms of the immovable property traded. 
This institution is not just an information 
office; it fundamentally produces a whole 
series of legal effects. Its wide-ranging effects 
have an impact not only on certainty and 
security but go even beyond, influencing the 
transaction costs that are going to nudge the 
flow of resources towards their best use, and 
they also reduce market asymmetry. Market 
asymmetry is such a vital concern that this 
year (2001) the Royal Swedish Academy of 
Sciences has given the Nobel Prize in 
Economics to economists Akerlof, Spense 
and Stiglitz for their work on markets with 
asymmetric information, that is, markets 
where the different agents acting on a single 
market have different levels of information to 
guide their decisions. Without a doubt, the 
reporting of environmental data will enhance 
the transparency of the property and 
business markets.

In short, the citizen, the consumer, is entitled 
to demand land registries to disclose 
environmental situations such as those listed 
herein below as well, in application of the 
principle of legal certainty:

(cid:127) Limitations, ties and easements that 

singularly affect ownership or faculties 

thereof due to environmental causes 
(contaminated land, natural parks, etc.).

(cid:127) Precautionary and preventive measures 

taken by the administration in 
environmental matters in relationship with 
given pieces of property.

(cid:127) Administrative licences that grant emission 
rights linked to given pieces of property 
and administrative concessions for 
regulating resource use.

(cid:127) Technical and economic aid for 

encouraging the performance of actions 
called for in environmental programmes, 
to cause the subrogation of future holders 
in contracted obligations.

In application of the ‘polluter pays 
principle’.

Once done, pollution is hard to fix. The 
point is not to tolerate pollution for a price to 
be paid in compensation for damages caused, 
but to keep damage from happening in the 
first place. The fundamental objective in 
making punishment methods more effective 
is to prevent transgression. To help reach 
that objective, the land registry could record 
the following particulars:

(cid:127) Corrective measures for given pieces of 

property, as declared by the administration.

(cid:127) Punitive measures such as suspending 
business and closing down facilities.

(cid:127) Fines and pecuniary sanctions to guarantee 

enforcement.

The ultimate goal of all these actions above is 
to provide truthful, full information about 
the legal situation of property for improved 
compliance with environmental rights and 
duties, and to see to it that future holders are 
affected as well, in application of the 
principle of real subrogation. They would 
also double as a means of increasing certainty 
in real estate trade and bolstering economic 
efficiency due to reduced transaction costs; 
these are two natural results when full, easy-
to-access information is available.

It is to the general interest for such situations 
to be made public, and society must demand 
that they be made public, not only because of 
the principle of general legal certainty, but 
also because of the specific subject at issue, 
the environment, which requires special 

Introduction

9

attention and protection. ‘A high level of 
protection and improvement of the quality of 
the environment’, says Article 2 of the Treaty 
establishing the European Community, based 
on the precautionary principle and the 
principle that preventive action should be 
taken (Treaty establishing the European 
Community, Article 174.2), which inevitably 
requires precise information and disclosure 
with legal effects. Those requirements can be 
obtained from the land registry.

The most advanced information technologies 
and georeferenced image bases should be 
used to execute this ambitious but needed 
proposal for registries to report the various 
environmental situations involving concrete, 
specific properties.

1.1. Land registry as an 

environmental information office

The land registry must remain faithful to its 
guiding principles if it is to continue fulfilling 
the function entrusted to it by law. The 
entries made in the land registry are 
safeguarded by the courts. Rights are 
published with efficacy erga omnes. In other 
words, the land registry must not be made 
into a mere bulletin board. That would taint 
and injure the essence of the registry.

Whether an environmental information 
department can be set up inside the registry 
office is a different question. Because of land 
registry offices’ direct relationship with a 
given physical space, their handy location for 
citizens, their information-processing 
equipment and telematic resources, 
georeferenced image bases, and so on, our 
offices could report information facilitated 
by other institutions whose purview includes 
environmental information, particularly 
information available from the European 
Environment Agency itself, which is a 
networked administration.

Environmental factors by nature are able to 
affect wide swathes of territory, and it is very 
important for them to be known. For that 
very reason, the EU did not restrict itself to 
the general principle of consumers’ right to 
information under Article 153 of the Treaty 
establishing the European Community, but 
also enacted a specific directive, Directive 
90/313/EEC.

Council Directive No 90/313/EEC of 7 June 
1990 on the freedom of access to information 
on the environment gives Member States the 

obligation to provide as necessary and to 
acknowledge the right of any natural or legal 
person to access to information about the 
environment held by public authorities 
without having to prove a specific interest.

By applying telematics technology, land 
registries could also act as simple information 
offices to facilitate environmental 
information, which could include applicable 
legislation.

The complex, many-faceted nature of 
environmental issues means that 
environmental issues affect a wide scattering 
of legal sectors and makes the environment 
the centre of all general public policies on 
land and sector-specific policies directly 
affecting land. The environment has a varied, 
changing impact on them all.

That is why understanding the real situation 
is so complicated, especially in a global 
market system. Traditional means of making 
legislation and territorial planning public by 
means of mere bare-bones reporting do not 
do enough to guarantee legal certainty of 
knowledge and therefore compliance. News 
of legislation’s existence must be announced, 
yes, but people must be helped to an 
understanding of what it involves and how to 
interpret it as well. By this we mean that 
information must not be limited to a mere 
statement of data or factual situations; it must 
extend also to the applicable rules and 
regulations and the competent institutions. 
That will require meticulous work, but the 
meticulousness of the work must not 
dissuade us from doing it, because it is far too 
important to safeguard the principles of the 
rule of law and environmental protection.

1.2. Emission right trading

It is the function of science to find each 
pollutant’s maximum tolerable limits of 
emission into the atmosphere, by itself and in 
association with other pollutants.

Legally, the air has always been considered res 
nullius, a communal thing for everyone to 
enjoy. Industrial civilisation has made it 
technologically possible not only for us to 
have unequal enjoyment of the air, but also 
for serious injury to be inflicted on our 
communal air, an example of what in 
economics has come to be called ‘the tragedy 
of the commons’. ‘Open access to a 
congested natural resource follows a pitiless 
logic to a terrible end, like in a Greek 

10

Land and commerce registry as an instrument for sustainability

tragedy’ (Garret Hardin). Nevertheless, open 
access and public property do not necessarily 
have to be the same. In order for air quality 
to be controlled, concessions or licences 
must be given for certain parameters. To 
make economic development compatible 
with maximum emission levels while avoiding 
the undesired situation of zero development 
requires technological innovation and 
alternative technologies plus recognition of 
the air’s economic value through the 
possibility of trading emission rights.

The mercantile registry would be a good 
institution for reporting emission rights and 
transfers of emission rights as a part of 
normal business procedure. With the proper 
adaptations, the same is likewise applicable to 
our other vital natural resource, water. Local 
information could be listed in a central 
registry.

1.3. Land registry as a provider of 

land rights

Land, the third component of the biosphere, 
lies under the cognisance of the land registry.

It is a basic, traditional, standing idea of 
legislation, a reflection of different cultures’ 
social attitude, to acknowledge the right of 
individual ownership of land (and what we 
are about to say is equally applicable to family 
property, communal property, group 
property and even public property). Thus, a 
portion of land is transformed legally into a 
piece of property, and over that piece of 
property its owner, the titled proprietor of 
record, holds broad faculties. What we call 
the social function of proprietary rights has a 
modifying influence on this assortment of 
faculties. Society may demand that the 
property be rendered productive (agrarian 
laws) or that capital gains be distributed 
(urban development laws). In some cases, 
both situations may clash with environmental 
protection. But, what we want to emphasise is 
that for the law, land is an object, a property 
subject to the application of proprietary 
rights.

Nevertheless, modern times have obliged us 
to look on land as a natural resource and to 
abide by the consequences of that tenet in 
every realm, including the legal realm, which 
is the realm that has to regulate the 
applicable order. Citizens, society and public 
authorities all have to assimilate this reality: 
land is made up of pieces of property, and 
both the whole (the land) and the parts (the 

pieces of property) are natural resources 
whose use must be in accordance with 
sustainable development. The nomen juris 
‘proprietary right’ must be preserved 
because the idea is so steeped in tradition, 
but nowadays the holder of proprietary rights 
(always a transitory position) is a 
usufructuary who ought to husband the 
property under an intergenerational 
obligation. This new concept, that of the 
natural resource, is going to lead to a series 
of limitations that, when singular and 
affecting specific pieces of property, must be 
disclosed in the land registry, as we pointed 
out above.

The law has traditionally settled problems of 
land scarcity by creating legal formulae such 
as joint land ownership compatible with the 
individual ownership of apartments subject 
to independent use. The scheme was applied 
on the tiny island of Phoenician Tyre, the 
first known case, and it is applied today in 
Manhattan.

Now, the law must tackle a problem that is 
not only one of quantity (scarce land) but 
also one of quality (land as a natural resource 
that can only countenance enjoyment that is 
compatible with sustainable development).

Our entire economy must be adapted to 
respect environmental demands, most 
especially when the object of those demands 
is a natural resource, as land is in the case at 
issue — an irreproducible, limited and 
therefore scarce item. In the subject at hand 
(which we call emission right trading, to use a 
term that can cover a varied field of content), 
it is the law’s job to formulate solutions 
enabling the enjoyment of a piece of 
property to coexist with compatible uses to 
which several owners are entitled. The idea is 
to optimise the resource without harming the 
environment and without declaring any more 
resources ‘out of bounds’ than necessary.

Let us look at an example that occurs in 
practice:

An agriculturally sound livestock farm must 
have x m2 of land per head of livestock in 
order to be an economically profitable 
concern. However, in order to be an 
environmentally sustainable concern, the 
farm requires five or 10 times more area than 
agricultural science calls for. So, there is an 
area of land that is occupied directly, and 
there is a surrounding environment that 
makes that area sustainable. Apart from the 

Introduction

11

economic problem of making the livestock 
farm viable if so much more land has to be 
bought, it also so happens that the purchase 
of all that surrounding land is harmful to the 
environment, because it writes off or cuts off 
a natural resource that could bear other uses. 
In addition, there are all the difficulties 
involved in trying to retrofit an already 
existing farm. Therefore, we consider that 
legally it ought to be admissible for the farm’s 
owner to purchase the faculty of releasing 
emissions into his surroundings. That way, a 
neighbour who transfers his emission rights 
to the livestock farmer can continue putting 
his land to any allowed use except livestock-
raising. The environmental sustainability of 
the farm is safeguarded and rendered 
compatible with economic development 
because the resources have been optimised.

Under the scheme of condominium property 
ownership, people can be assigned exclusive 
rights to and joint ownership of common 
elements. What we call ‘emission rights’ are 
going to enable the enjoyment of property to 
be divided into simultaneous compatible uses 
enjoyed by various proprietors (which I 
consider is best done primarily in the form of 
easements, where property is concerned).

I consider that, in any case, emission rights 
should be placed in the sphere of real rights, 
not the sphere of obligations, because the 
important thing is the property, not its 
owners. If framed as a real right, emission 
rights will afford permanence, certainty, 
effects in dealings with third parties and real 
subrogation in the established order.

Also, to return to our example of the legal 
handling of farm wastes, if the wastes cannot 
be environmentally assimilated by the farm 
itself, the properties the wastes go to ought to 
have the support of an appurtenant 
easement. Since these are real rights we are 
talking about, the land registry will provide 
those rights with the legal efficacy and 
disclosure that are characteristic of the 
institution, especially in cases of transfers of 
rights that do not entail possessory 
displacement.

The appurtenant easement is the best legal 
tool for establishing and organising both 
public environmental limitations and 
environmental limitations set for the benefit 
of private persons.

In short, it is important to establish a 
connection between environmental law and 
civil law and the inspiring principles thereof.

12

Land and commerce registry as an instrument for sustainability

2. The land registry as a means of 

environmental prevention

2.1.  Environmental legislation and 

registry gatekeeping

Fernando P. Méndez González, Dean and 
President of the Association of Land and 
Mercantile Registrars of Spain

This paper contains a brief reflection on the 
possibility of considering the land registry 
(and the mercantile registry as well) as a 
gatekeeper, guardian of legality or law-
enforcement institution in the realm of 
environmental legislation as well. The idea 
requires a few brief preliminary reflections 
about the function of registries and the 
figure of the gatekeeper.

This paper refers only to what are known as 
title registries, because, for the reasons given 
briefly at the end, deed registries can hardly 
perform this kind of function.

2.1.1. Registry systems as transaction cost 

reducers

In legal systems organised on a very 
elementary basis, the difficulties caused by 
information asymmetry between buyer and 
seller (as the seller normally has a better 
grasp of the physical and legal attributes of 
the item for sale and is interested in 
concealing any attributes that might frustrate 
the sale or reduce the price by much) are 
mitigated only by private formulae designed 
to safeguard the buyer. These formulae are 
based on the seller’s liability under 
contractual guarantees. Some contractual 
guarantees are honoured because the seller 
wishes to remain a visible market presence; 

others, because judicial action for 
enforcement is taken ex post facto. In the latter 
case, the ‘concealed rights and defects’ (the 
origin of the information asymmetry) survive 
until a court sentence is eventually handed 
down, and their survival is a hindrance to any 
transactions involving the goods and rights at 
issue.

In order to avoid asymmetries due to hidden 
rights — and also to some measure to 
facilitate ex post judicial action — practically 
all modern legislations have provided for 
some type of public intervention ex ante facto 
to reduce real estate transaction’s 
information or uncertainty costs as far as 
possible.

So then, registration systems (real estate and 
company registration systems) pursue the 
essential goal of reducing legal uncertainty in 
the matters within their competence, and 
therefore containing legal information costs 
in their sector (1).

Reducing uncertainty is equivalent to 
increasing certainty, and increased certainty 
not only serves to facilitate exchanges but 
also — and we would do well to stress this 
point — to foster the use of properties as 
security for the performance of other 
contracts, primarily credit agreements (2).

The registry’s achievement of these goals has 
made it, with the passage of history, a 
fundamental law-enforcement institution for 
containing the positive transaction costs 
inherent in all market economies (3).

(1) From this perspective, it would appear that we might postulate the tendentious evolution of registration 

(2)

systems toward the ideal accomplishment of what we might call registration completeness, by whose virtue 
the registration system ought to provide economic players with all the necessary legal information on the 
immovable property in question, including environmental legal information, so the players can take 
contractual decisions.
The registry ought to supply all the necessary information, on its own or in cooperation with other land 
information systems. It would thus go far to reduce information costs (with all the consequences inherent in 
that achievement).
In fact, if we look at the historic origin of most, if not to say all, registration systems, we see that the initial 
reason they were introduced was originally to enable the immovable wealth of an individual to serve as 
security for credit, the great lever of all modern economy. Modern economy is after all merely an economy of 
credit. Consider the following passage from the preamble to the Spanish Mortgage Act of 1861: ‘Our 
mortgage laws are condemned by science and by reason, because they neither sufficiently guarantee 
property, nor do they exercise a healthful influence on public property, nor do they seat territorial credit on 
solid bases, nor do they impel the circulation of wealth, nor do they moderate the interest on money, nor do 
they facilitate its acquisition to the owners of immovable property, nor do they duly ensure the persons who 
lend their capital on this guarantee. In this situation [...] reform is urgent and indispensable for the creation of 
territorial credit banks, to give certainty to ownership and to other rights in the thing, to place limits on bad 
faith, and to free the landowner of the yoke of pitiless usurers’.

The land registry as a means of environmental prevention

13

2.1.2. The gatekeeper: Notion and requirements 
for its effectiveness as a law enforcer

To gain at least a partial understanding of 
this function, we must refer to the role of the 
registry as a ‘guardian of legality’ or 
gatekeeper (4), an expression that has 
prospered in the economic analysis of the law 
to refer to a special strategy or mode of law 
enforcement, which consists in applying 
sanctions to or demanding responsibilities 
from private parties that, because of their 
transactional function, are in a position to 
stop unlawful conduct by withholding their 
cooperation. And withholding what 
applicants need is — usually — the registry’s 
way of contributing to law enforcement.

Of course, the land registry (or mercantile 
registry) is not a private party but a public 
institution. This difference estranges it from 
the notion of the gatekeeper as initially 
conceived. Nevertheless, there is a strong 
analogy with the figure, if we bear in mind 
that the first registries only monitored the 
private legality of transactions between 
private persons, while today they also 
monitor the public legality implied in all 
manner of registrable operations, such as 
legality in terms of fiscal matters, 
administrative matters, urban development 
and, in the very near future, environmental 
matters. So, when a buyer of immovable 
property seeks to register his purchase, the 
registry not only checks for compliance with 
all the civil requirements necessary for the 
operation to be valid or effective (e.g. 
consent, object, cause), but also verifies 
whether the parties have paid the proper 
taxes; if the property at issue has been 
separated from another, larger piece of 
property, the registry verifies whether the 
proper licence has been obtained; if it is a 
question of declaring new construction, the 
registry ascertains whether the proper 
building licence has been obtained and 
whether the work licensed and declared are 
the same, etc.

In such cases, the registry cooperates in the 
enforcement of the right in different ways: 
(a) by refusing to cooperate, that is, by 
rejecting the entry, as in the case of new 
works presented for registration without a 

building licence; (b) by placing a registered 
guarantee on immovable property, as security 
for the State when private persons fail to 
comply with certain obligations (e.g. 
marginal notes of encumbrance on 
transferred immovable property, which 
remain in place until there is proof that the 
transfer tax has been paid and the tax 
administration has agreed to lift the 
encumbrance after checking the transfer’s 
value, for a given time period); (c) by 
notifying the administration when private 
citizens fail to provide proof of having 
satisfied certain requirements set by 
administrative legislation, and by recording 
that failure in a marginal note so no third 
parties are injured by action taken under 
public faith in the registry (e.g. unlicensed 
separation of land, according to Catalan 
urban development legislation); (d) by 
refusing to make definitive entries and 
making only provisional entries — at the 
interested party’s request — until proof is 
given of compliance with certain 
requirements; (e) by notifying the public 
prosecutor of the operation in question if it 
involves committing any crimes.

In cases (a), (b), (c) and (d), the registry may 
be considered to act as a gatekeeper. Clearly, 
it also cooperates in other ways in the case of 
non-compliance, but those forms of 
cooperation are not within the scope of this 
paper.

All these cases highlight one of the most 
characteristic traits of the registry’s function: 
The registry, as a representative of third 
parties — that is, all those persons who are 
not parties to the contract or operation in 
question, i.e., the representative of the 
community — sees to it that the persons who 
are parties do not violate imperative rules 
that by definition impose individual 
restrictions as a by-product of collective rights 
(e.g. the community’s right that each citizen 
pay his taxes, or that nobody build to a height 
of more than a certain number of stories); 
and the registry does so by refusing to 
cooperate with the parties when this 
happens, and even cooperating with the 
authorities in charge of preventing and 
suppressing non-compliance. These traits

(3) Compare: Méndez González, F. P., ‘Los sistemas registrales como reductores de costes de información y 

(4)

conservación’, communication presented at the UN WPLA meeting held in Madrid in September 2000.
It was Kraakman, R. H., who first constructed the figure of the gatekeeper in ‘Gatekeepers: the anatomy of a 
third-party enforcement strategy’, J.L. Econ&Org. 2 (1986). Later, Paz-Ares, C. and Arruñada, B. used the 
gatekeeper to explain the role of the notary as a producer of public order. Méndez González extended the 
figure to the analysis of the registrar in ‘La función calificadora: una aproximación desde el análisis 
económico del Derecho’ in La calificacón registral I, Gómez Galligo, F. J., Ed Civitas, Madrid, 1996.

14

Land and commerce registry as an instrument for sustainability

make the registry an extraordinarily useful 
piece of any law-enforcement strategy (5).

2.1.3. Requirements for gatekeeper effectiveness
In order for gatekeeping strategies to be 
effective, not only must there be deficiencies 
in the other law-enforcement systems (as 
there usually are), but also certain specific 
provisos must be met, to wit:

Firstly, there must be a service that the 
violator finds necessary or advantageous in 
order to achieve his objective and a person 
who is able to withhold that service. This first 
proviso involves the legal problem of the 
advisability or inadvisability, from the 
efficiency standpoint, of making it 
mandatory for the registry to render its 
services in various types of transactions. This 
is a question that cannot be dealt with in this 
paper, because that is not our subject here. 
Let us simply say that, in certain countries, 
registration is constitutive in all or some 
cases; in others, it is mandatory; and in 
others, voluntary, save in certain cases.

Obviously, the problem arises only in places 
where registration is voluntary. In these cases, 
one must suppose that, whereas registration 
is a transaction cost designed to avoid the 
greater cost of non-registration, parties will 
invest in registration rationally, that is, up to 
the point where the investment’s marginal 
costs balance out the benefits of registration.

Therefore, one requirement will be that the 
registry must produce the greatest possible 
effects. The second requirement will be that 
legislation must make the registration system 
and especially the registrar as independent 
from the stakeholders as possible.

Secondly, the law must be able to induce 
gatekeepers to prevent violations at a 
reasonable price. This is a problem of design 
that we cannot enter into in a paper of this 
size, but it is handled well enough in the case 
of the registry. An analysis of comparative 
jurisprudence will also show that the costs, 
both implicit and explicit, diminish when the 
registrar is paid by the ‘residual retribution’ 
scheme, which enhances both the efficacy 
and the efficiency of the system.

Thirdly, the supply and demand of the 
gatekeeping service must be such as to 
ensure the gatekeeper’s willingness to play 
his role and his clients’ willingness to accept 
that role. This third proviso means that the 
registration system has to be willing and able 
to prevent violations of the law by 
withholding access to registration for certain 
operations, and thus abstain from collecting 
registration fees.

Among the varied problems involved in this 
third aspect, the most interesting is basically 
that of the registrar’s independence, which 
must be preserved and reinforced. The 
registrar must be independent from both the 
political authorities (and therefore cannot be 
hand-picked by them) and the market (and 
therefore cannot be elected to office).

Indeed, one basic condition required before 
any gatekeeping system can function 
properly is the independence and integrity of 
the persons rendering the service. In the case 
of registries, these virtues take on dramatic 
proportions. Should they ever wobble — 
should registrars ever easily give in to 
pressure from powerful applicants and fail to 
close the door on transactions that violate the 
law — if public confidence in the registries 
were ever to come under a cloud — the 
entire institution would fall apart.

All title registration systems meet these 
characteristics, and the international trend is 
to evolve towards title registration. Title 
registration systems are characterised by the 
fact that, at least where third parties are 
concerned, the terms of registry entries take 
precedence over the terms of the titles 
causing those entries to be made. That 
characteristic allows this type of registry to 
produce what is called the public faith effect, 
whose essence lies in the fact that the third 
party is only bound by the terms of the 
registry entry.

Other registration systems cannot perform 
gatekeeping functions for, since they cannot 
accredit title to and burdens on immovable 
property even in third-party dealings, they 
are no good at all for effectively checking 
legality. Consequently, such systems can 
hardly serve as support for law enforcement.

(5) Environmental legislation has all the traits to make it eligible for connection to the registry using the same 
steps as urban development legislation, or steps very similar to those. A registry of ‘pollution rights’ might 
even be put together, like the one registry urban development legislation requires for listing transfers of 
urban development operations.

The land registry as a means of environmental prevention

15

2.2. Land registry and environment

Santiago Lafarga Morell, Land registrar

The environment is something that belongs 
to us all, and as such it deserves to be 
protected, improved and defended.

From the very beginning, people have always 
taken protective measures in their private 
relations to avoid certain kinds of 
intromissions or meddling likely to disturb 
their peace and tranquillity. Such measures 
gave a markedly individualistic sort of 
protection, based on the concept people 
held back then of the right to private 
property. Even at that time, the world of law 
used to afford private persons certain 
institutions that indirectly protected the 
environment, such as certain sorts of 
easements.

objectives is the legal registry of goods and 
persons. Registries of goods and persons 
report the terms of the entries they hold, and 
their entries have the same legal efficacy as 
judicial decisions, because the registry’s 
pronouncements are made on the grounds 
of registry officials’ preliminary check for 
legal validity.

Through the registry’s reporting of both 
preventive and punitive measures aimed at 
protecting, improving and conserving the 
environment, the current and future holders 
of title to property are obliged to comply with 
any such measures, and those measures 
cannot be stripped of their protective force 
by any changes in title-holder. In addition, 
because the registry reports the pertinent 
information, at no time will title-holders be 
placed in a situation of defencelessness 
against preventive or punitive measures.

With the passage of the years, a gradual 
change has come about in the traditional 
concept of private property. Private property 
use has been subjected to increasing 
numbers of limitations to benefit the social 
goal of more rational private property use. 
Property is taking on a kind of use that is 
more committed to and respectful of the 
environment, with the passage of the years. It 
is moving from an individualistic orientation 
to a collectivistic orientation.

If the registry were to report environmental 
protection measures, legal information about 
the ownership of and liens on property would 
be successfully allied to environmental 
information, thus keeping the information 
from being scattered far from where it is 
needed and making the information 
symmetrical, which would in turn avoid 
greater costs and lend greater certainty and 
protection to legal trade and the 
environment alike.

While environmental protection can 
continue to be upheld through private 
relations, there is a gradual, growing 
awareness that it must be the administration 
itself that takes the initiative, as the 
representative of all our collective interests.

Acting as a guardian, the administration must 
take preventive measures, whether acting ex 
officio or at the request of a party. That is a 
priority. Although coercive and punitive 
action also have their place when necessary, a 
good preventive policy will avoid making 
costs higher and perhaps avoid the actual 
infliction of what may sometimes be 
irreparable damage.

In all environmental protection matters, the 
right to information is of vital importance to 
citizens’ interests. A protected environment 
is value added to the value of the land.

Action to protect the environment is clearly 
staged on a land-based setting. One 
institution that may prove highly useful for 
achieving environmental protection’s 

Of all the planets known so far, earth is the 
only one that meets the necessary conditions 
for developing life. Blanketed by a layer of 
air, the atmosphere, made up of gases 
including oxygen and carbon dioxide which, 
together with water vapour, are indispensable 
for our existence. Their balance enables the 
planet to maintain a stable temperature and 
humidity, yet this balance is increasingly 
threatened by outside agents reared mainly 
by the activities of industrial man.

The more industrialised societies are, the 
greater the amounts of carbon dioxide they 
release into the atmosphere. That, plus the 
constant aggression against the atmosphere 
caused primarily by chlorofluorocarbons, is 
causing the hole in our ozone layer to slowly 
but steadily grow larger. It all comes together 
to cause a gradual heating of the planet that 
is leading to a climate change known as the 
greenhouse effect.

If to the serious problem caused by the 
heating of the planet we add the problem of 
desertification due to the constant process of 

16

Land and commerce registry as an instrument for sustainability

deforestation (sometimes voluntary and 
sometimes involuntary) and also due to acid 
rain created by the use of certain energy 
sources, rendering the land on which it falls 
unproductive, there can be no doubt that the 
future awaiting our planet is not a very 
cheerful one. The constant blows to our 
world not only may endanger our subsistence 
and that of future generations, but actually 
are a deadly threat against the plant and 
animal life of some regions.

Sometimes, such problems can be traced to 
poor planning in the development of our 
societies, maybe because of overpopulation 
in certain zones. These problems have led us 
to overexploit our planet, pollute it and in 
short gradually to destroy it.

Nature by itself does not pollute. Everything 
nature produces is in time reincorporated 
into nature. We cannot say the same of the 
human being, who generates more and more 
waste, some of which is not recyclable, that is, 
can neither be reincorporated into the 
production process nor returned to nature.

One of the elements of our ecosystem that, 
together with the atmosphere, is the most 
heavily punished by man is land. If we fail to 
have a care for the future, as we have said, 
land can be the object of constant aggression, 
not only the aggression it receives directly by 
actions done to it, but also the aggression 
that can be inflicted on it indirectly, the 
repercussions it may suffer through other 
elements that have an effect on land.

The protection of our environment has 
always been a constant of human history, 
since environmental protection has always 
borne a relationship with our quality of life.

In Roman times, there were certain actions 
and rights intended primarily to regulate 
good relations between neighbours and to 
prevent the use of property from leading to 
an abuse of property, especially when that 
abuse might harm the people around us.

There used to be, and there still are, things 
such as neighbourly relations, action to repel 
claim for easement and the mandatory 
constitution of certain easements. All these 
things are fixedly oriented towards regulating 
our relations with the persons who live closest 
to us in coexistence, and they are all presided 
over by the principle of good faith in the 
exercise of rights, to prevent the use of rights 
from becoming an abuse of rights.

The main drive behind these concepts used 
to be to protect property, not only one’s own 
property, but also the property of others — 
always, however, from an individualistic 
standpoint on the problem. Any intention to 
protect interests any wider than the 
individual’s interest cannot be found, neither 
in the remotest past nor in more recent 
times.

It is in modern, more industrialised societies 
that our outlook on the environment has 
changed from an individualistic perspective 
to a collective view, we might even go so far as 
to say a universal view. The environment as 
collective property that must be preserved 
and as a common heritage that must be 
respected. It is at that point that people have 
begun to talk about striving for sustainable 
development so that nature itself can 
maintain its own regenerative capacity.

It is a step, or rather an attempt to step, from 
rudimentary environmental protection 
implemented through individual, practically 
neighbourhood action motivated by private 
interests, to collective action protecting the 
interest that we all hold in the environment 
as a collective thing.

We still keep regulating neighbourly relations 
conducted by private persons under the 
principle of free will, yet even so, we also feel 
that it is the administration’s job to monitor 
for environmental conservation, 
maintenance and improvement. The 
administration, as a representative of our 
collective interests, must care for maintaining 
our natural resources; it must seek to ensure 
the proper use of natural resources and it 
must seek to restore natural resources. The 
environment must be protected regardless of 
who owns a particular parcel of it and 
regardless of the property laws under which it 
is held.

Despite the collective need, environmental 
protection is no easy assignment. It is hard to 
give a definition of the object of 
environmental protection that satisfies 
everybody. It is an issue that is tightly 
interrelated with other sectors, sometimes 
sectors with conflicting interests. It is an 
eminently technical issue in which, before 
making any decision, the first thing that is 
needed is expert knowledge, which the 
administration will have to look for in 
environmental specialists, and which will 
colour the action the administration takes. It 
is unthinkable to try and create a good 

The land registry as a means of environmental prevention

17

environmental policy without the help of 
experts whose studies and opinions ought to 
show the administration the way.

stance, but as part of a collectively-owned 
property.

Sometimes, environmental protection may 
collide with economic interests that must be 
weighed, such as the principle of free 
enterprise. Legally, private interests can 
intermingle with public interests. In fact, 
there is debate about whether environmental 
law belongs to the field of public law or 
private law. At times, there is a connection 
between it and such widely differing 
disciplines as civil law, commercial law, 
administrative law and penal law. Taking 
certain measures may also create problems of 
competence, since the consequences cover so 
much ground that they may affect different 
areas.

But, one thing we are sure of is that 
environmental protection is an issue of 
international scope wherein the 
administration, despite the difficulty, cannot 
afford to take a passive or lazy stance. 
Environmental protection must act as a 
framework within which all other activities 
must take place.

It was in the mid-1960s that social awareness 
of the need to protect the environment 
began to arise. In 1972, the EEC assumed 
environmental protection as one of its 
functions; however, not until the signing of 
the Single European Act in January 1986 was 
Community cognisance over the 
environment incorporated in primary 
legislation; later, the freedom of access to 
information on the environment was 
acknowledged through derived legislation in 
Directive 90/313/EEC of 7 June.

With the passage of the years, throughout the 
different configurations or transformations 
that proprietary rights have undergone, one 
observation may be made: environmental 
protection ought to be inherent in 
proprietary rights and their use, whether 
environmental protection is understood as a 
limitation on the exercise of proprietary 
faculties or as something already integrated 
within the faculties comprising the 
proprietary right.

The social function of property is not at odds 
with the environment, but united to it. The 
exercise of the right to private property 
nowadays can no longer be observed from a 
purely individualistic, gung-ho liberalist 

As F. de Castro posits, we have to wonder 
whether we ought to protect individuality or 
collectivity in regulating our different 
institutions.

It is a principle accepted by the international 
legal community that the use of a right 
cannot be allowed to lead to abuse of that 
right, and even less may the use of a right be 
allowed to injure our fellows. For this reason, 
it is also generically understood that 
proprietary rights can be limited in view of 
their social function. This social function will 
delimit the contents and scope of the 
proprietary rights. In other words, we are 
recognising that proprietary rights can and 
must be limited to benefit a higher purpose 
that deserves protection. That protection it 
can receive directly from the law or, 
alternatively, through social awareness about 
certain facts or events, maintained over a 
given time. Our present concept of 
proprietary rights is not the same as the 
concept our ancestors held. At current stages 
of development, events have caused us to 
take another look at certain ideas or 
principles that we had always held as valid 
thitherto. And so the exercise of a right must 
never be antisocial. The persons who 
interpret and apply our laws must be given 
room so that even if the letter of the law does 
not change, it can be interpreted and applied 
in consonance with the contemporary social 
reality.

One might suppose that the environment 
does not need protection, since its protection 
is inscribed within proprietary rights 
themselves, the same as the social use of 
proprietary rights; and that is true, since 
there is now beginning to be enough of a 
social awareness to uphold the idea of 
environmental protection and to clamour for 
repair of and indemnification for any 
damage to the environment. But the 
question at issue is also one of taking 
environmental protection measures that are 
concrete and coordinated.

Many different technical and legal studies 
have been run to find the best way of 
protecting the environment, and the more or 
less general consensus reached is that the 
best policy for the administration to follow is 
a preventive policy, although without 
neglecting that environmental quality must 
also be improved, not just protected. To 

18

Land and commerce registry as an instrument for sustainability

begin with, a good preventive policy can 
avoid the higher costs involved in 
environmental repair or restoration 
solutions.

While we must not necessarily ignore the 
need to take a punitive attitude towards the 
polluter under the Community’s ‘polluter 
pays principle’, sometimes a civil sanction or 
even a penal sanction can never repair the 
damage done, especially when the damage to 
the environment is irreparable or 
irreplaceable. The best thing is to try to avoid 
having to take solutions after the fact, when 
the damage is already done.

But, both when preventive action must be 
taken and in the case where reparative or 
punitive action is necessary, both types of 
action must be guided by the idea that a 
collective interest is being defended. 
Environmental protection needs to be based 
upon principles such as solidarity, 
objectification of risks and disclosure or 
information.

There must be solidary legal capacity, both 
for taking action and for replying to action 
taken. No problems of pinning down 
responsibilities in the correct quarter must 
arise. We must do without the causal nexus. 
Whosoever performs a harmful activity must 
be responsible for that activity, and any 
stakeholder, as joint holder of title to the 
environment, must be able to ascertain, by 
means of some sort of disclosure that endows 
the terms it discloses with legal certainty, 
what environmental policy is being followed 
or will be followed in his area, and whether 
the pertinent measures have been taken to 
suppress polluters, not only because damage 
is being done to an asset that the stakeholder 
jointly owns, but also because the stakeholder 
ought to be able to take direct or indirect 
action himself if the authorities remain 
passive. Citizen knowledge, intervention and 
decisiveness are necessary, because they are 
all going to reflect on the citizen’s own 
environment and, in short, the citizen’s 
quality of life. That is why all public and 
private projects must be subject to an 
environmental impact assessment.

The environment as a legal asset has a direct 
impact on land. A protected, utterly 
pollution-free environment constitutes value 
in addition to the land’s own intrinsic value. 
For that reason, it is necessary for any citizen 
to be able to ascertain the quality of the 

environment surrounding him, for that 
affects or might affect his property.

Sometimes, the administration has a 
preventive policy but has to take direct, even 
coercive, action anyway to protect and 
regulate the environment, and the action 
may directly involve the property of the 
persons suspected of causing the 
environmental damage. This sort of action 
might consist in prohibitions or, alternatively, 
limitations on the property-owners’ faculties 
as such, without limiting the faculties’ 
disposability. At other times, the best course 
is not to take action squarely aimed at 
ownership or proprietary faculties; it may be 
wiser to institute measures aimed at securing 
some sort of guarantee to help repair any 
damage caused.

Of all these measures, be they restrictive, 
prohibitive or securing, the measures that 
offer the most safety are the limitations, 
prohibitions and guarantees reported in land 
registries, and not only because they can be 
known; in addition, land registries monitor 
for legality, registered measures are 
guaranteed to take preference over other 
measures and registered measures can be 
enforced quickly.

Nevertheless, so far, since society has begun 
to wake up to the problem, the action of our 
public administrations cannot be said to have 
been very well planned. This is not to say it is 
unorganised. Perhaps that is due to the 
issue’s difficulty (it is very tightly interlaced 
with other disciplines, as we have pointed 
out); perhaps it is the outcome of trying to 
avoid problems of conflicting spheres of 
powers with other administrations. The fact is 
that administration action has generally been 
rather tightly sector-oriented, and it has 
nearly always been taken from the 
administrative stance — action to regulate 
certain special kinds of property and to 
protect them from possible meddling and 
uses by private persons through certain types 
of limitations, easements and prohibitions.

What we can say is that it has been a constant 
practice of our administrations to neglect to 
ensure proper reporting for the growing 
numbers of limitations it applies to protect 
special types of property. Administrations still 
uphold the old belief that the disclosure 
given by the law is always greater than the 
disclosure one can get from other institutions 
that are easy to consult and quick to access. 
The most that administrations have achieved 

The land registry as a means of environmental prevention

19

by this course of action is a sort of control 
exercised by some officials, but that control is 
sometimes rather tricky to enforce in view of 
the different sorts of terms the different 
administrations use and the different 
procedures they use, aggravated by lack of 
coordination and shortage of resources.

We must try and lay to rest this classic 
distinction between public reporting and 
private reporting and strive for a kind of 
reporting that covers the entire proprietary 
right without distinction. After all, everything 
is property; the only thing that changes is 
who holds title to it.

In an increasingly better-interrelated world, 
where we can ask for and quickly obtain 
information online, sometimes even 
information with legal force behind it, it is 
still hard for the man on the street to 
conceive that a foreign citizen concluding a 
contract while sitting in his country of origin 
could possibly be aware of all the limitations 
on assets located in another country under 
another country’s law, unless he has 
thorough information that can guarantee 
legal certainty for him.

But the fact is that, apart from sector-specific 
regulations, the administration has tended to 
stick closer to the path of penalisation than 
prevention, perhaps because it is trying to 
implement a dissuasive attitude with its policy 
of intimidation through administrative, civil 
and criminal penalties.

Although the punitive approach ought not to 
be discarded out of hand, we have already 
said that it is not the best way. Good 
precautionary measures aimed at avoiding 
the damage in the first place can constitute a 
better measure of justice than punishment 
can, because they are quicker. Often the 
damage done cannot be undone, especially 
when it involves, for example, the 
elimination of local wildlife or the 
elimination of the ecosystem.

The fact is that sometimes taking a good 
precautionary measure will not only result in 
preventive protection of the environment; it 
may also inform the present or future 
stakeholders in advance of the possible 
consequences of transgression, consequences 
that sometimes will not stop at civil or 
administrative proceedings but may lead to 
criminal proceedings.

Let us then focus on the need for 
environmental protection through legal 
measures taken after the proper technical 
studies, based on the basic principles we have 
discussed. The administration must be able 
to take preventive measures both directly and 
at the request of private persons, depending 
on the scope and purpose of the measures; 
and in both cases there must be legal 
protection, i.e., it must be impossible to place 
the person involved in a situation of 
defencelessness. In the action it takes, the 
administration may have a direct impact on 
the person involved, or it may oblige the 
person or persons involved to take certain 
protective measures to achieve certain aims 
through agreements among themselves. But 
both sorts of measures, when they affect 
property ownership by limiting the range or 
exercise of the faculties of ownership, will 
involve in principle a limitation of ownership, 
and sometimes they may also involve a 
limitation of the autonomous will of the 
private persons themselves; nevertheless, in 
both the one case and the other, they will 
affect the right in immovable property.

We also see that often land can only be used 
if licences, permits or authorisations are 
secured first. When the aim being sought is 
environmental protection, we must not rule 
out the possibility of granting such licences, 
permits and authorisations only if the 
applicants meet certain requirements that 
they must also be able to meet through 
agreements among themselves as private 
citizens to cede or acquire certain 
proprietary faculties, without direct 
intervention from the administration yet 
under administration supervision.

In short, preventive environmental action 
must be open to execution directly by the 
administration via relations between 
administration and administrated, or 
indirectly via private relationships supervised 
by the administration.

The laws protecting certain special types of 
property have been observed to afford sector-
specific protection only, shielding the special 
type of property under the administration’s 
guardianship but failing to give bilateral 
protection in the administrated’s favour. Of 
course, this is a problem of sector-specific 
regulation.

One measure that is easy to take and would 
yield big advantages would be for the land 
registry to report certain pieces of property 

20

Land and commerce registry as an instrument for sustainability

that enjoy special protection due to their 
location, historic or artistic interest or their 
plant or animal life, just to mention a few 
examples, as if they were catalogued 
properties. This would be a highly useful 
measure, not only because it would give 
private persons knowledge of the situation 
(with all the possible legal consequences 
entailed); it would also be useful to the 
administration, which is the first person 
interested in having the area in question 
respected and preserved, and it would 
facilitate work to monitor for legality, because 
once the situation is on record in the land 
registry, it would be known that these 
properties are subject to a special regime.

If we want to make the administration’s 
action more incisive, one good move would 
be to report the limitations set for 
landowners the same as we report property 
information. That would not only favour the 
administration’s interests (because not only 
future buyers would be bound by such 
disclosure), but also help boost legal 
certainty in real estate transfers. The 
administration could apply such limitations 
through prohibitions sometimes, and 
sometimes through licences and permits that 
are not granted unless the administration is 
given easements, or through guarantees to be 
furnished to secure compliance with certain 
obligations.

But, in all these cases, we say again, it would 
be wise not to rely solely on the disclosure 
provided by law. There are so many 
advantages in the kind of disclosure the land 
registry gives to immovable property matters, 
reporting and definitively binding any 
purchaser, that we need not rely only on the 
kind of disclosure afforded by the law to gain 
knowledge of cases where subrogations in 
burdens or limitations on the affected lands 
occur by the force of the law itself. In 
addition, this course of action would free the 
property from that particularly hazardous 
sort of burden that is quite legal but not 
generally known about, and therefore 
intentionally or not creates a kind of 
uncertainty in real estate transfers, because 
known or not, such burdens are law, and 
ignorance of the law is no excuse. This kind 
of burden abounds in special laws. And since 
even special laws are public laws, as some 
authors say, their terms ought to be reported.

Assuredly, in order to reach these objectives 
there has to be some kind of coordination 
between the environment and the land 

registry, the same as between the registry and 
other sectors such as urban development — 
which, by the by, also needs to be 
coordinated with the environment.

While appealing to society’s environmental 
awareness, legislators must not neglect 
private persons and their private 
relationships. Under a contemporary 
interpretation of the law, stakeholders must 
not be hampered from self-regulating their 
environment themselves, through the 
different legal figures permitted by 
legislation. Just as the owners of flats located 
in the same building self-regulate how they 
live together, people should be allowed to 
regulate their own environment within the 
limits of the law, if that is going to be for the 
good of the environment. Peace and quiet 
are highly appreciated values in our 
competitive society. They too need 
protection. They too affect the quality of our 
environment.

We see then that the world of law is equipped 
with mechanisms for protecting the 
environment through its different 
institutions, even though some of those 
institutions do need to be reinterpreted, 
moulded to suit current needs and social 
feeling. That is due (to return to idea we 
started out from) to the fact that, although 
people have always been concerned about 
the world around them, the protection they 
used to accord the environment was coloured 
by their interest in protecting the individual 
and his property. There was no need to 
protect more generic, universal kinds of 
assets unless because of the need for 
individual protection. It is only in recent 
times when we have begun gradually to feel 
the need to protect more generic interests as 
well, interests that are not always easy to 
pinpoint or catalogue, such as consumer’s 
rights, for example, or the environment.

That is why when the environment comes 
under attack, the main obligation of the 
administration as a guarantor of collective 
interests is to react to the attack and not only 
seek repair, indemnification or penalisation, 
but also stop the action causing the damage. 
That is the important thing. Crimes against 
the environment are generally crimes that 
take some time to commit. When there is an 
attack on the environment, damage is done 
not only to the landowners most immediate 
or closest to the focus of origin, but to the 
entire collective. The administration needs to 
have the right legal mechanisms to take 

The land registry as a means of environmental prevention

21

direct action against the guilty party, 
especially against the guilty party’s assets, so 
as to guarantee not only the violator’s 
compliance with any penalties and pecuniary 
indemnities, but also to stop the violator’s 
harmful action or make up for the violator’s 
harmful omission. The administration’s 
action must not be hampered by any changes 
in asset ownership, and so the administration 
needs to be able to count on the help of the 
institution of the land registry. If the 
administration submits administrative, civil 
or criminal proceedings (which in the first 
instance are usually aimed at stopping the 
injurious action or making up for the 
omission) to the registry as quickly as 
possible, the registry can then be used to 
enforce the guilty party’s punishment or civil 
or criminal liability.

allowed to take precautionary measures to 
avoid not only an increase in the damage but 
also an undesirable lengthening of processes. 
Whether administrative, civil or criminal, any 
process that lasts too long becomes a sham in 
the end, because by the time a verdict is 
reached the guilty parties’ assets have 
vanished. To prevent all these 
environmentally harmful consequences, 
which are actually harmful to us all, the 
pertinent precautionary measures must be 
taken so that at least the assets of the guilty or 
allegedly guilty parties are tied up until the 
process is over. Once such measures are 
taken pursuant to current legislation, the 
outcome of the process is immune to 
changes in asset ownership or encumbrances 
designed to reduce assets’ value and thereby 
cause loss to us all.

When an environmental violation is 
committed, the administration must be able 
to act not only ex officio but also at the request 
of private persons. Its action, while 
complying with the requirements established 
by law and having a care not to strip the 
violator of his legal power to defend himself, 
must be directly enforceable. But, within that 
action, the administration must be equipped 
with different kinds of resources, for 
everything from stopping action, to 
rescinding concessions, to applying certain 
limitations or easements. And, after the 
damage is quantified, the administration 
must be able to file for the proper 
indemnities, using the assets of the guilty 
parties to secure compliance.

Independently of administrative action taken 
when the environment is injured, there will 
always be a place for civil or criminal action 
claiming damages or laying charges of 
crimes. In both the former and the latter 
case, the action must be given access to the 
land registry, especially when the damage 
involves or is done to a specific piece of 
immovable property or may have a direct or 
indirect repercussion on the ownership of a 
specific piece of immovable property.

Sometimes, civil action cannot only be aimed 
at claiming payment for damages. Claims can 
also be designed to avoid the repetition of 
similar damage in the future, by imposing 
mandatory easements.

But, just as the administration must be 
allowed to take immediate action to keep 
ecological damage from increasing, the 
different jurisdictions involved must also be 

2.3. Registry reporting of 

environmental limitations

Vicente José García-Hinojal López, Land 
registrar

The rule that has had the greatest influence 
on how access to environmental information 
is envisaged is European Community 
Directive 90/313/EEC, since until the 
Aarhus Convention it was the only rule in the 
international sphere that gave the right to 
environmental information to all persons in 
general.

The Aarhus Convention gives natural or legal 
persons the right to access to environmental 
information held by public authorities, but 
with two refinements or advances over 
Directive 90/313/EEC. First, it stresses that 
the citizen is not obliged to prove any 
interest, although even so it is considered 
that the citizen may find it useful to give 
reasons in his information application, to 
enable the official in charge to do a better 
job at finding the required particulars; 
second, it envisages access to information as a 
right, thus following the doctrine settled by 
European Court of Justice case-law.

The convention includes within the concept 
of environmental information not only 
natural resources and noise, but also 
landscape, the status of cultural sites, human 
health, safety and living conditions, 
substances, energy, radiation and all kinds of 
measures that concern the environment, 
including voluntary agreements between 
public activities and companies. This 
reference to agreements is a nod to the issue 

22

Land and commerce registry as an instrument for sustainability

of self-regulation, that is, the strategy 
designed to reach environmental objectives 
by means of negotiation between the public 
authorities and economic partners. In other 
words, both the convention and the directive 
are basic at the international level, because of 
both the type of information they concern 
and the fact that they are not circumscribed 
to a concrete ecosystem or aspect but rather 
pertain to all sectors of the environment.

As we have seen, the Aarhus Convention 
establishes the principle that public 
authorities are obliged to provide 
information. This concept encompasses all de 
jure public administrations plus the persons 
who exercise public functions or render 
public services related with the environment.

This definition might engender dysfunctions 
between States, since not all countries hold 
the same concept of what services the public 
administration ought to render. However, 
thanks to the broad, functional concept 
outlined in the convention, the definition 
neatly covers all cases where the public 
administration delegates its functions to 
other organisations.

Now then, just because the right to 
information as envisaged in the convention is 
so broad, that does not mean there are no 
exceptions made for interests that are in 
need of protection.

The guarantees the convention includes are 
the following:

(a) Use of a restrictive interpretation of the 
grounds for refusal, based on weighing 
the public interest in the information’s 
release and the relationship between that 
information and environmental 
emissions.

(b) Evaluation of the opportunity to provide 
information, thus eliminating aspects 
that are so confidential as to be contrary 
to the protected interests. This would 
cover the protection of public interests 
involving, for instance, matters of 
national defence, international relations, 
public safety and criminal or 
administrative enquiries concerning the 
environment, and also private affairs 
such as intellectual property, commercial 
and industrial secrets and information 
provided voluntarily by a third party.

In any case, the convention urges officials to 
provide citizens with guidance so they can 
obtain the information they are truly 
interested in. If this is done properly, many 
problems can be avoided.

Lastly, with respect for the deadline for 
providing this information, while Directive 
90/313/EEC says that public bodies must 
reply to the interested persons as soon as 
possible and within two months and must 
state the reasons for refusing information 
applications, the Aarhus Convention cuts the 
deadline back to one month, which may be 
expanded to two months when duly justified 
by the volume and complexity of the 
information requested, without the 
alternative of silence signifying refusal. In 
other words, there are only two options of 
response to the application: to grant it or to 
refuse it for a justified cause.

Now that we have been introduced to the 
international legal framework, let us focus on 
the issue at hand. Pursuant to the statute of 
disclosure, we can define ‘reporting’ as any 
activity whose object or end is to make 
knowledge of a thing, fact or situation public.

According to Pugliatti, the two main 
components of reporting are knowledge and 
dissemination. Nowadays, however, that 
phase has become outmoded and we must 
take a step farther to distinguish between 
reporting on the one hand and publication 
and notification on the other. In other words, 
we must distinguish between news reporting 
and effect reporting. Taking this line of 
thought a step farther, we could define 
‘reporting’ as Chico Ortiz does, as that 
requirement which, when added to the 
requirements surrounding legal situations, 
ensures the ownership of rights against all 
other people and protects any person who 
acquires the right on the basis of faith in the 
reported pronouncements, thus facilitating 
credit and protecting legal trade.

This is where the field of registry reporting 
shows its true face and real importance. 
Registry reporting makes the land registry a 
good technical means for reporting 
immovable property relations and thereby 
attaining legal certainty in trade (6).

2.3.1. The land registry and environmental 

disclosure

The need for environmental protection is 
increasingly being envisaged as a two-headed 
concept, both a right and a duty of citizens 

The land registry as a means of environmental prevention

23

and States. This standpoint inexcusably 
requires legislation that looks at the different 
aspects and ways of focusing on the question 
and regulates the question’s various 
manifestations in both the preventive and the 
standardising aspect. And legislation must 
not neglect the vital question of the need for 
the necessary means of reporting, to ensure 
the real effectiveness of environmental 
protection.

The land registry is an institution that can 
prove indispensable for accomplishing this 
goal inside the areas stated in Article 174 of 
the Treaty establishing the European 
Community, since it can be fully coadjutant 
in successfully protecting and disclosing the 
various environmental manifestations 
needing protection, whereas land registries 
are located throughout the Union, they keep 
records on a property-by- property basis and 
they provide the same disclosure to all parties 
concerned.

Laws state that before rules can take effect, 
they must be published in official gazettes or 
journals. By the mere fact of being reported 
publicly, they become binding, and no one 
can claim ignorance to avoid having to 
comply with them. In the field of the 
environment, where there is a swarm of rules 
of different origins and ranks pertaining to 
each piece of property, depending on where 
the property is located, relying on that kind 
of reporting is silly and will just create more 
ignorance, which is contrary to legal 
certainty. If we want full legal certainty, 
reporting is not enough. Full legal certainty 
requires proper reporting. Thus, Article 
129.9 of the Treaty on European Union, 
under the title ‘Consumer protection’, says 
that the Community shall contribute to the 
attainment of a high level of consumer 
protection through specific action to support 
and supplement the policy pursued by the 
Member States to protect the health, safety 
and economic interests of consumers and to 
guarantee adequate consumer information.

For this purpose, although we have seen how 
the Aarhus Convention establishes the 
general principle that no special interest 
need be proved to get access to information, 

in the concrete case at issue in this paper 
(that is, the reporting of environmental 
limitations on specific pieces of property), 
for the sake of legal certainty and for the sake 
of the protection of registered rights and 
their holders, plus the interest of third 
parties, I feel that the applicant ought to 
show evidence of some interest, be it only an 
alleged or token interest.

2.3.2. Mode of recording environmental 

situations in the land registry

In order for the land registry to be able to 
report environmental situations involving 
specific pieces of property, those situations 
must have been registered in an entry first. 
The entry could be an entry in the true sense 
of the word, plus a marginal note of the legal 
modification; the note would have its own 
terms. A registration procedure might be 
used that is similar to or inspired by the 
procedure Spanish law follows for urban 
developments. If so, we could count on 
having the vital support of what are termed 
‘reference notes’. These methods could be 
used to reflect and report, inter alia, the 
environmental limitations, ties and 
easements on each piece of property; the 
rights held over them via administrative and/
or administrative concessions; preventive 
measures, punitive measures or indications 
that proceedings of various sorts (criminal or 
administrative) have been initiated; the 
important question of environmental impact 
assessments (facilities, infrastructures and 
works projects must run an environmental 
impact assessment before their builders can 
secure a licence to begin work); and licences 
or concessions of rights and authorisations 
for their transfer.

So, once the environmental situation of each 
specific piece of property is entered in the 
registry, that is going to allow us to provide 
and the stakeholder to obtain a complete 
report of everything about the property, i.e. a 
full legal and economic report of every 
particular. Reporting will get environmental 
situations into the marketplace, whether 
those situations are good (property value 
added because of ownership or expectation 
of ownership of environmental rights 
entailed in the property, and the obvious 

(6)

In Spanish registry law, the substantive aspect of reporting is twofold:
1. Positive, which means there is a double presumption:
(a) It is presumed, juris tantum, that what the registry says in its records is accurate and full, even if there is 

proof otherwise.

(b) Presumably, it becomes juris et de jure in favour of any third party who has acted in good faith, relying on 

information reported by the registry.

2. Negative. Anything not registered in the registry will have no effect at all for a person who enters into a 

contract while relying on the contents of the registry.

24

Land and commerce registry as an instrument for sustainability

consequence of the possibility of taking 
mortgages on that increase in value) or bad 
(e.g. attachment, restrictions on ownership, 
limitations on free transferability of property 
or environmental rights, registry notations of 
lawsuits, etc.). In short, the registry office will 
become environmental protection’s 
indispensable helpmeet, ready to state the 
existence and boost the effectiveness of 
precautionary and restorative measures. It 
will be a basic, essential part of 
environmental management, by which we 
mean the set of actions and provisions 
necessary to successfully maintain sufficient 
environmental capital so that people’s quality 
of life and the quality of the natural heritage 
are kept as high as possible.

2.3.3. The registry office and reporting of its 

contents

This is the phenomenon known as formal 
reporting, that is, the means whereby 
interested persons are given knowledge of 
the contents of the registry. If we take a 
pointer from Spanish mortgage law, I feel the 
environmental situations affecting property 
can be reported by means of simple 
information notes and registry certificates.

Let us consider how the impact of 
environmental questions is even now altering 
the concept and traditional content of 
proprietary rights. And it will alter them even 
further in the future, plumbing to heretofore 
unsuspected depths the social function of 
proprietary rights, which is augmented by the 
apparently irreversible nature of the 
degradation of the environment and the 
extinction of natural resources, which until 
recent times were considered imperishable. 
And let us consider how the impact of 
environmental questions is pressing 
restrictions and checks on proprietary rights, 
which the French revolutionaries went so far 
as to consider ‘sacred and inviolable’. Now 
then, considering all that, the land registry 
should not be content with being a mere 
news-reporting information office, but 
should aspire to report effects as well. Effect 
reporting could include, among other things, 
within the territory of each registry:

(cid:127) information about communications 

infrastructure;

(cid:127) information about acoustic maps;
(cid:127) information about land pollution;
(cid:127) information about the pollution of bathing 
water in coastal areas, according to the 
Community directive on the quality of 
bathing water;

(cid:127) information about the amount of pollution 

in inland waters;

(cid:127) information about land uses;
(cid:127) information about deforestation.

Here lies the thrilling possibility of 
influencing Community environmental 
policies. The registry is established 
throughout the territory; its records are 
organised on a property-by-property basis; it 
is incorporated in the environment. So, using 
modern technology, it must be enabled to 
gather and agglutinate all the information 
about the various environmental rules 
affecting its territory and thus give general 
information. This can be done through 
interconnections with local governments and 
cadastres, and with specific information on 
environmental legal action affecting each 
piece of property, both to its benefit and to its 
detriment. And that includes cartography 
and georeferences to complement the legal 
and economic information provided by the 
registry, which would furthermore enable 
registries and local governments to exchange 
information, say, in changes of ownership of 
title, entries made and removed in cadastre 
offices, censuses, tax rolls, etc.

2.3.4. Conclusion
I, like Va Aguaviva, consider that we must 
strive to get the land registry empowered to 
act as an information office, with the 
specifications I have mentioned, to enforce 
the specific reporting and information 
measures the administration must apply in 
order to guarantee legal certainty, so that, in 
addition to providing the reporting it is 
charged with as an institution, the land 
registry can facilitate, in some differentiated 
way, information on the laws affecting 
property and registered title ownership.

The land registry could go further and remit 
information on changes in ownership to the 
competent institutions, and it could furnish a 
real guarantee of compliance with 
obligations such as penalties, where 
subrogation is not an alternative.

Citizens’ legal certainty and certainty in trade 
demand an information office that will 
render the market transparent.

The land registry, as an independent 
territorial institution that generally provides 
and guarantees certainty, must fulfil that role 
to complement the purpose for which it was 
created.

The land registry as a means of environmental prevention

25

In other words, the registry office can and 
must be considered a basic element for the 
proper, orderly management of the 
environment. With the registry by its side, 
environmental law — i.e., the set of rules, 
principles, institutions, operational practices 
and legal ideologies that regulate the 
relations between social systems and their 
natural environments — will rest complete 
with a proper system of registry reporting. In 
practice, that would mean that the traditional 
relations between environmental law and the 
big branches of law — civil law (extra-
contractual liability), criminal law (eco-
crimes), administrative law (licences and 
environmental impact assessments), 
Community law (European Union 
environmental directives and regulations) 
and tax law (rates and eco-taxes) — could 
also incorporate registration or mortgage 
law. Private law would then not be 
circumscribed to the realm of extra-
contractual liability when environmental 
matters are at stake (as in the classic view), 
but could expand to encompass the realm of 
legal certainty in trade and reporting of 
environmental legal situations involving 
specific properties, thus enabling those 
properties to be incorporated in economic 
trade.

All the foregoing will be reflected in the so-
called ‘ecological’ image achieved and 
reinforced by means of mechanisms such as:
— action to protect the environment in 

production processes as well as products;
— publication of environmental situations 
via the land registry and, in the right 
sphere, the commercial registry and;
— legal verification of the validity and 

operability of such action.

In other words, to fit the land registry and 
registration law into the appropriate part of 
environmental legislation (an indispensable 
tool of public environmental management, 
consisting in the preparation of 
environmental protection rules that set 
certain goals to be met and a series of 
measures for reaching them). However, the 
system must include a complete, effective 
system of reporting the particular 
environmental situations involving each 
specific piece of property to third parties, 
with third-party enforcement guarantees, 
taking advantage of the fact that the land 
registry is organised on a territorial basis and 
orders its records on a property-by-property 
basis, with the due use of technological 
infrastructures to permit appropriate 

monitoring and legal certainty in 
environmental matters, legal certainty in 
trade and economic development.

2.4. The registrable title

Marta Valls Teixidó and Mercedes Tormo 
Santonja, Land registrars

This section of the paper tackles the issue of 
the formal aspect of the documents to be 
submitted to public offices in charge of 
reporting the measures, decisions and 
solutions taken in regard to property 
involved in environmental questions.

After a brief historical overview, we shall 
establish the conditions of form and content 
that the document must satisfy in order to 
guarantee the rights of both third-party 
purchasers and property owners in a 
reporting system, within the limits of respect 
for the environment.

Let us make it clear that we are merely 
discussing the question as it concerns 
registrable titles and documents. We shall not 
touch upon access to the registry, or rather to 
the registry office, by environmental 
limitations that are not required by law to be 
recorded in the entry for the property in 
question.

In ancient minds the right to own property 
was seen as unlimited as far as what might be 
considered the ‘use and abuse’ of the 
faculties of property ownership was 
concerned. If we compare that with the 
present situation, where restrictions and 
limitations are placed on the faculties of the 
owner of the fundus by imperatives including 
environmental protection on the basis of the 
principle of sustainability, to make 
sustainable the economic development we 
need so that our fellow human beings and 
their descendants can live decently in a 
healthy biophysical environment, as the 1972 
Stockholm Summit advocated, we can see 
that the right to own property has indeed 
evolved. Far from remaining at a standstill, it 
continues on its way. For example, we have 
seen in the foregoing sections of this paper 
the enormous number of limitations or 
restrictions that are becoming increasingly 
advisable for us to lay upon the concept of 
property in the traditional sense, and how in 
practice new figures are being born on the 
strength of environmental needs, some of 
them still lacking legal regulation.

26

Land and commerce registry as an instrument for sustainability

Now that we recognise how useful it would be 
to us all if certain environmental decisions 
were recorded in the land registry, we must 
decide what documents are going to 
constitute a valid instrument for conveying 
such decisions to the registry. Given our 
tendency to place more and more limitations 
and prohibitions on proprietary rights, we 
might discern two phases in this evolution, 
which reflect in two different ways how 
limitations gain access to the registry. 
Depending on the state or level of 
development of the country in question, 
these phases are:

The current phase, or developing States 
phase, where most legislation places 
limitations and prohibitions on the way 
proprietary rights can be used, but 
nevertheless the ruling principle is that, in 
general, all kinds of meddling and 
interactions with the environment are 
allowed save those that are expressly 
prohibited or exceed the established level of 
sustainability or rational use.

The future phase, or States where the level of 
legislative evolution has reached a point 
where it declares as prohibited or not 
permitted all kinds of interactions with the 
environment (except breathing and other 
interactions that can be considered 
elementary), and the environment — water, 
air, ground — is considered an asset owned 
by the State on behalf of all citizens, and use 
of or interaction with the environment is 
allowed only through titles or specific 
authorisations for specific, concrete acts.

The States in the developing phase or 
current phase can be considered to include 
all the States in our sphere (the EU). They 
are concerned about the environmental issue 
and have been very specifically committed to 
it since the approval of the Single European 
Act of 17 and 28 February 1986 and the 
Maastricht Treaty on European Union of 7 
February 1992. Due to the great number of 
forms, manners and procedures in which 
environmental limitations and obligations 
can be applied, we will find a wide range of 
types of title documents, which can be 
roughly grouped either as administrative title 
documents or documents signed by private 
persons with the formalities required by 
Member State legislation or judicial 
documents.

2.4.1. Administrative title documents
(a) Administrative certificates or decisions 
issued by the authorities to establish 
certain absolute prohibitions on emission 
or use or other limitations for a given 
zone (for example, a zone located in a 
natural park or specially protected area). 
The authority in European Union 
matters will be the commission in charge 
of environmental enforcement, 
Directorate-General XI, although there 
are special directorates in agriculture, 
energy and transport and Member States 
may have powers that they can assume 
directly.

The competent EEC or national 
authority for initiating the process and 
delimiting and imposing restrictions, 
limitations or encumbrances on a zone 
for environmental reasons must abide by 
a procedure that legislation must 
carefully regulate. In that procedure, the 
owners of all the properties involved 
must be called in, and so must the owners 
of all the real rights pertaining to those 
properties, and they must all be told of 
the limitations or prohibitions that will 
be placed on their belongings under the 
procedure. At the end of the procedure, 
the authorities will issue their decision, 
which must describe the property or 
properties involved, state that the 
registered owners of the land and other 
real rights have been called in, and 
clearly state the limitations or 
prohibitions placed on the property’s use 
for environmental reasons. The decision 
itself or, as applicable, a certificate of the 
decision made out to one or more of the 
properties involved, will be the 
registrable title. It will be recorded in the 
registry in an entry, and it will constitute 
an encumbrance on the property.

(b) Administrative decision given as a 

concession or authorisation if it affects 
the conventional ownership of State 
water or land or the atmosphere. In its 
decision, the administration must watch 
closely for compliance with the 
concession conditions, mete out fines 
and penalties and oblige transgressors to 
compensate for damages.

The procedure will begin at the request 
of the interested person. In concessions 
or authorisations, the owner of a given 
property will be authorised or conceded 
the right to emit or to release into the 

The land registry as a means of environmental prevention

27

atmosphere or environment in general 
certain quantities of products, noises, 
etc., in excess of the rational or 
sustainable threshold that is considered 
allowed to everyone in general. The 
right, or the faculties granted in the 
concession, will necessarily be linked to 
the particular piece of property, so 
although the right may be independent 
or transferable, it will always pertain to a 
certain piece of property (for example, 
because the property is located in an 
industrial park), and it will stem from the 
property as a proprietary faculty.

This document is an administrative title 
issued by the competent authority 
according to the legislation of the 
country in question. In it, there will be a 
description of the property and the rights 
being granted. If it is a concession, it will 
be recorded in an entry in the registry, 
where all the conditions set in the 
administrative decision will be reflected. 
If it is an authorisation, it will be 
recorded in the form of a note in the 
margin of the property’s entry. It will not 
be considered an encumbrance, but 
rather an added right or faculty that can 
be detached from domain and is 
therefore transferable, as we shall see.

(c) Licences issued by the administration at 
the property owner’s request, to perform 
those acts for which State legislation 
purposefully requires licensing, such as 
factory construction, farms, planting, 
woodcutting operations and highway 
construction. In all these acts, certain 
environmental conditions can be set that 
must be met in relationship with the 
property involved. Most of the time, these 
conditions will be set as the result of the 
environmental impact study that must be 
run before the act is eligible for licensing. 
The environmental impact assessment 
authority may demand that certain 
inescapable conditions on the concession 
be recorded in the registry before 
granting the licence, or it may demand 
that conditions or obligations be written 
into the body of the licence. Both the 
licence itself and the decision of the 
environmental impact assessment 
authority, which requires proof as a 
prerequisite, would be admitted for entry 
in the registry. The title necessarily 
requires a description of the property 
and a detailed list of the limitations or 

obligations on the landowner that 
directly affect the property. These 
particulars will be recorded in a marginal 
note by virtue of the administrative 
document issued on behalf of the 
Community or State authorities.

(d) Administrative document granting a 

subsidy for a given business that at the 
same time places obligations on the 
property owner that tell him what 
businesses can or cannot be run on a 
certain property and therefore can be 
envisaged as limitations on domain. For 
example, economic aid for 
environmental retrofitting for old 
industries can consist in grants, tax 
breaks or qualified loan conditions. The 
aid would be recorded in a note in the 
margin beside the property’s entry, and it 
would be an encumbrance on the 
property, so anyone acquiring the 
property after that would know that the 
property is subject to compliance with 
the obligations placed upon it when the 
subsidy or benefit was given, and that 
failure to comply with the obligations 
would give rise to the loss of the subsidies 
or benefits and entitle the administration 
to take back the sums paid out or to 
return the property to its previous 
condition at the property’s expense.

(e) There is mandatory insurance that can be 

taken to palliate civil liability for 
environmental pollution. Such insurance 
can be demanded as a prerequisite, to be 
taken before a concession is given, and 
subsequent entry in the registry can be 
made to depend on whether or not the 
insurance is actually taken. In this case, 
proof that the insurance has been taken, 
in the shape of an insurance company 
certificate, would be a complementary 
document for subsequent registration of 
the title to the concession.

(f) Cases of condemnation under sovereign 
right of eminent domain will be entered 
by virtue of the administrative certificate 
of condemnation. The entry will give a 
due explanation of all the steps followed 
in the condemnation procedure, which 
do not have to differ from the steps 
currently regulated in each State’s 
legislation. An extra ‘cause of 
condemnation’ would just have to be 
added, the environmental cause, which 
can be justified by two reasons:

28

Land and commerce registry as an instrument for sustainability

One: As a penalty, condemning the 
property that is in violation of 
environmental measures, in a procedure 
lodged against the registered holder of 
title to the property and including any 
appropriate indemnification.

Two: Condemnation can also be 
employed in cases where, for reasons of 
public use, the authorities decree it 
necessary to expropriate certain zones of 
land (actual land or the right to 
emissions or dumping on it) or 
atmosphere that they especially want to 
protect from all fluids or dumping. In 
these cases, a procedure will be regulated 
in which the owner of the property to be 
condemned must necessarily be called in, 
and if it is emission rights that are to be 
expropriated, the owner of the rights and 
the owner of the land they pertain to (if 
there are two different owners) will both 
be called in, as will the owner of 
neighbouring properties that may be 
affected indirectly. Legislation must state 
in what cases an appraised price should 
be paid. As the outcome of this process, a 
certificate will be issued by the acting 
administration describing the essential 
circumstances of the procedure, 
especially the summonsing of owners and 
encumbrances on the properties, and the 
declaration of the need to condemn and 
to pay an appraised price.

(g) The registry will also be an instrument of 
disclosure for violations, because it will 
report the penalty or fine in a marginal 
note if the penalty or fine is confined to a 
single piece of property, or it will report 
the guarantee furnished to ensure 
compliance.

The decision applying the penalty will 
likewise be a registrable title. It must 
always give evidence of the process that 
has been followed, so as to avoid 
rendering the owners defenceless.

(h) For polluted atmospheric zones, it is 
possible to record the declaration of 
polluted land in a note in the margin of 
the entry on the affected property by 
virtue of the administrative certificate so 
declaring, and that will serve the 
reporting function for later potential 
purchasers of the property.

(i) When the administration initiates a 

proceeding on a piece of property to 

ascertain whether that property complies 
with the environmental measures 
demanded of it (because the land has 
previously obtained a concession, licence 
or authorisation, or because activities 
take place on it that need some kind of 
authorisation or permit that they do not 
have), any writ the authorities issue 
asking to record a caveat on the property 
due to a proceeding’s having been 
initiated must be allowed access to the 
registry. Regulations must require such 
caveats to have an expiration date, which 
could be four years (as it is in Spanish 
legislation) or shorter, since 
environmental processes must be settled 
more quickly if we want them to be truly 
effective in practice. A guarantee of 
enforcement is no good if in practice the 
damage done may, with time, become 
irreparable.

In any event, the administrative document 
must be issued by the competent authorities, 
whether European Community or State 
authorities. Since environmental law 
intermingles with various other subjects or 
disciplines of law, clearer legislation might be 
desirable in this respect, and it would be a 
good idea for the various regulations of the 
procedures to be followed to be absolutely 
clear about which authority is competent to 
handle each case.

The European Community holds 
competence in protected supranational 
spaces, so it tends more towards federative-
type solutions. As opposed to the European 
Parliament, whose decision-making powers 
are scant, the Council is in reality the 
Community’s highest rulemaking body, and it 
is the Council’s duty to take pragmatic 
decisions and environmental measures, since 
it is made up of representatives from the 
Member States.

The different States will adopt the Council’s 
directives, while autonomous regions will 
apply EC regulations directly.

2.4.2. Documents signed by private persons with 
the formalities required by Member State 
legislation

There is a great number of acts related with 
the environment that private citizens can set 
down in authentic documents. We ought also 
to make a brief mention of the principle of 
free will in this connection. Practice can lead 
to the birth of figures designed to achieve the 
objectives set by environmental legislation 

The land registry as a means of environmental prevention

29

through channels that are licit but not yet 
regulated by law. Registrars’ examination of 
such documents for due form is terribly 
important in such cases, to ensure that the 
documents’ terms abide by the spirit of 
environmental law in cases that are not yet 
regulated. It will be environmental law’s job 
to investigate and subsequently to define the 
new figures that pop up and to decide what 
can be the object of licit legal trade. 
Certainly, the faculties of ownership that have 
always been considered inseparable 
components of domain up to now may begin 
to be peeled away into separate objects, and 
we will have to determine which of them can 
indeed be independent objects of trade. With 
today’s outlooks, here are a few examples:

(cid:127) A document by whose virtue a landowner 

waives the option to certain types of 
emissions on a property and conveys them 
to others. In this case, the waiver would 
function like a restriction the property’s 
own owner has placed on his own 
proprietary faculties, something like an 
easement.

(cid:127) Also within this category is the sale of what 
the American media have called ‘licences 
to pollute’, discussed in the October 1990 
version of the Clean Air Act for cases where 
an industry reduces its pollutant load by 
modernising its technology or some other 
means, while the area’s maximum 
qualitative assimilation limit remains 
constant, so the resulting surplus can be 
sold off. Industries can use what are known 
as ‘pollution banks’ to facilitate the 
transactions that allow new industries to 
move into the area.

(cid:127) Other practices are also feasible, such as 

expanding one’s pollution quota by taking 
advantage of unused shares (like urban 
development transfers).

Documents executed by the owners of several 
pieces of property to establish links between 
their properties, so as to create a zone having 
certain characteristics qualifying them to 
obtain licences for certain activities or to 
preserve the property from certain activities. 
For example, a farm owner may thus link his 
farm to the environmental space of adjoining 
properties, so that the load of waste from his 
farm can exceed the limits set for his 
property alone. Or a campground owner 
might link the biosphere of adjoining 
properties together for the ultimate goal of 
establishing a pollution-free protected 

animal park, which would make his 
campground more attractive.

The document must be executed with all the 
formalities legislation requires, by the owner 
or owners of the properties encompassed by 
the use or affected by the transfer, and also by 
the owners of the registered or noted rights 
on any properties that are also affected by the 
transfer. The transfer will be recorded on the 
folio for the property that benefits from the 
transfer and noted in the margin of the folio 
for the property making the transfer.

We need not go on to mention all the 
commonly accepted kinds of contracts, such 
as mortgages (especially the unilateral 
mortgage) securing the fulfilment of 
obligations (in this case environmental 
obligations) and swapping, conveyance and 
sale agreements, which remain fully under 
the umbrella of current regulations as long as 
their object of trade is licit.

2.4.3. Judicial document
The legal realm is growing in importance 
with the clearly international phenomenon 
of ‘cross-border pollution’, that is, pollution 
whose origin lies in one State and whose 
effects spread beyond that State’s borders, 
causing situations that involve the 
jurisdiction of more than one State. The 
same effect but in reverse occurs in cases of 
‘pollution exporting’, when the very sources 
or risks of pollution are moved beyond 
national jurisdiction. The negative 
consequences have been discussed as early as 
in Article 130r of the Treaty on European 
Community. Article 130r also deals with the 
need to draw up an environmental policy 
that respects the conditions of the 
environment in the different regions of the 
Community, thus avoiding what are called 
‘pollution havens’, which form when due to 
an inequality in some Member State’s 
legislative demands concerning the 
environmental issue, domestic enterprises 
are placed at a disadvantage against the 
products of other, less demanding States.

Once a conflict is established as having been 
internationalised, international 
jurisprudence — that is, the jurisprudence 
created by judicial courts or courts of 
arbitration — is relatively scarce in 
international environmental law, although in 
recent times there has been growth. 
International jurisprudence has grown from 
an arbitrators’ decision on the 1941 deTrail 
jurisdiction case to the creation on 19 July 

30

Land and commerce registry as an instrument for sustainability

1993 of a special permanent division for 
environmental questions at the International 
Court of Justice.

Nowadays, the job of environmental 
watchdog is done by the States party to 
conventions regulating the various sectors of 
environmental protection.

Sometimes, certain functions involving 
control over the application of international 
environmental protection rules could be 
done through competent international 
organisations. In the European Community, 
such organisations would have judiciary 
backup. The Court of Justice of the 
European Communities has already handed 
down plentiful case-law, and the same can be 
said at the Council of Europe level about the 
recent case-law of the European Court of 
Human Rights. While the evolution of 
international environmental case-law is 
gradually becoming consolidated, other 
efforts have been made aimed at creating a 
international environmental court under the 
auspices of the United Nations. Only when 
the EEC’s International Environment Court 
is fully implemented can we talk about 
effective control over compliance with 
environmental measures and achieve their 
coercive goal by reporting the court’s 
decisions through instruments such as the 
land registry.

The registry can leave a record of all firm 
court decisions that contain an 
environmental penalty or place limitations 
on a given piece of property. Once those 
decisions are on record in the land registry, 
third-party purchasers cannot claim 
ignorance.

Whenever a prohibition against doing 
something is imposed, it will be recorded in a 
marginal note or an entry, and it will 
constitute a burden on the property.

decision handed down in a procedure lodged 
against the owner of title to the property on 
which the real prohibitions, limitations or 
sanctions will have an effect.

In the second case, which still lies in our 
future, we go on the assumption that, except 
for essential uses, all emissions into the 
atmosphere, water or land are severed from 
the faculties of domain by law. Therefore, the 
elements of land, air and water involved in 
environmental law are under State 
protection, and as such they are envisaged as 
part of the public domain. In these cases, the 
only way to enjoy the right to interact with 
the environment is to win an administrative 
concession.

First of all, a right would have to be 
established to cover the transition phase until 
this ultimate stage is reached. In principle, 
we would have to respect acquired rights, if 
they are properly proved. Proof could be 
furnished through:

(cid:127) A notarial certificate attesting to the 

legislative terms for ensuring continued 
respect of the acquired right. In this case, 
the certificate could be recorded in the 
registry, either under the property at issue 
or, if legislation envisages the faculty as a 
concession obtained via acquired right, it 
could be recorded in the registry as an 
independent property or right.

(cid:127) Also, in this case, the acquired right could 
be accredited by an administrative decision 
that proves a right has truly been acquired 
and the conditions it entails. The various 
administration proceedings, authorisations 
or relations the individual has been 
involved in would have to be checked first. 
Access to the registry would be gained with 
a certificate from the competent 
administration, stating the scope of the 
right and the properties it refers to.

Obviously, writs of attachment will be very 
important for judicial enforcement of 
environmental debts in compliance with the 
requirements already presently established 
for all enforcement procedures, to wit, a 
procedure is filed against the registered 
owner, payment is demanded, and then an 
attachment is thrown on the property and 
noted in the registry by virtue of the judicial 
authority’s writ.

Once acquired rights have been respected, 
we would have to distinguish between the 
following:

Habitual uses necessary for basic human life, 
such as heating exhaust pipes. A simple 
authorisation or permit with preset limits 
would be granted automatically for these 
uses, say, when the building permit is 
granted.

Boiled down to the bare essence, a judicial 
document will be constituted by a firm 

All those uses that are classified as not 
necessary or basic. For them, an 

The land registry as a means of environmental prevention

31

administrative title of concession would have 
to be obtained in a procedure especially 
established by legislation. Legislation would 
have to regulate the concession’s access to 
the registry and say whether it is a quality of 
or encumbrance on the property, or whether 
it is an independent right.

welter of information that is of no real 
importance. It is a question of incorporating 
in the registry only that information which is 
useful, in the clearest possible way and for a 
given length of time, depending on how 
cancellation of the information may be 
facilitated.

Although this phase may appear far off, just 
think that while the elements comprising the 
environment will probably not all at once be 
declared to belong to the public domain, 
some of them will, and when that day comes 
it will only be possible to use them through 
concessions. Consider the case of water in 
Spain.

Lastly, we ought to speak about the means for 
recording the extinction or performance of 
measures, limitations or conditions in 
registries. The means can vary, from setting 
an expiration date after which the marginal 
note would be cancelled, to requiring an 
administrative decision from the same 
authority as imposed the limitations or 
conditions in the first place with proof of 
compliance, to having the private parties sign 
a document voiding previous accords by joint 
agreement. And in any case, a firm judicial 
decision decreeing the limitations, 
conditions or accords cancelled would always 
constitute valid means.

Conclusion
Briefly, in conclusion, we feel that the general 
philosophy of legislation, whether European 
Union legislation or the legislation of 
Member States, must head towards using the 
land registry to record various environmental 
decisions, but not all of them, just the ones 
that are aimed directly at one piece of 
property and are of import to third parties 
because they somehow involve a decrease or 
increase of the property’s market value due 
to obligations, limitations or sanctions. It is 
not a question of making our registries a 

In general, both administrative and judicial 
titles, which must have access to the registry, 
must be the outcome of a correctly observed 
procedure established by legislation with 
sufficient guarantees for all the title-holders 
involved. Registrars must be able to examine 
all the essential requirements for compliance 
in those countries where registries are not 
simply administrative in nature.

Documents executed by private persons and 
liable to registration must be subject to the 
country’s general rules of contracts, to start 
with. All documents that are open to 
examination for due legal form at present 
must still be examined for due legal form. 
The object of trade must especially be 
examined; as we have said before, since this is 
a developing issue, the parties may, in the 
exercise of their free will, create figures that 
legislators have not yet conceived of. The vast 
importance of having registries headed by 
persons with legal training will be reflected 
here.

In all these cases, the documents can be 
incorporated in the form of paper or 
electronically-stored data. Thus, judicial 
documents as well as administrative 
documents and documents signed by private 
persons can have online access to the registry, 
provided that they meet the requirements of 
merits and document integrity set by 
legislation, and always within the framework 
in Directive 1999/93/EC of the European 
Parliament and the Council of 13 December 
1999.

32

Land and commerce registry as an instrument for sustainability

3. The land registry as a medium for 
guaranteeing punitive measures 
in the environmental realm

Luis Alfredo Suárez Arias, Land registrar

Abstract

Land registrars’ cooperation can be 
especially effective in restoring ecological 
order after it has been upset by illegal 
actions.

The information on record in the registry 
must include both obligations to restore the 
environment (means and deadlines) and 
economic penalties laid on polluters, and it 
must guarantee compliance.

The job of policing (monitoring or checking 
the application of the law) is one of the 
classic things land registries do and a field to 
which registries can contribute long 
experience of effective, proven action. The 
registry is known to be the right kind of 
institution for lending a hand at demanding 
compliance with urban development and 
farming laws.

Legal provisions on farming and urban 
development (and legal provisions on the 
registry too) have the territory as their basis 
of action. Protection of the law in matters of 
rural and urban land use is a complex task 
that not only involves the administrative 
authorities, who must police in the strict 
sense by physically inspecting the territory 
and imposing any deserved penalties; it also 
involves other public institutions, such as 
land registries.

Land registries’ usefulness in policing resides 
fundamentally in the fact that land registries 
are bodies of permanent information. 
Registries’ reporting of administrative 
policing actions is the most effective way of 
making those actions known to all, by means 
of quick, easy, ongoing access.

Private citizens and all interested public 
administrations can find out through the 
registry, at any time and practically in real 
time, about the fulfilment or non-fulfilment 
of the legal obligations to which the holders 
of land rights are subject. The registry also 
gives information about economic sanctions 
and guarantees their payment.

All the foregoing of course has a dissuasive 
effect on the persons involved, and that 
stimulates voluntary fulfilment of legal 
obligations.

The opportunity to transplant this effective 
experience to the realm of environmental 
legislation is not to be missed. Not only can 
land registries help out in the task of 
territorial policing in the strict realm of 
information about penalising measures 
imposed due to breach of legal duties of 
environmental conservation, or measures 
taken to secure the payment of economic 
penalties or indemnities; the registry’s 
cooperation must and can cover the entire 
wide range of actions involved in restoring 
the upset ecological balance, a concept that, 
as we shall see, is much broader than mere 
wrist-slapping.

We must not forget that the job of prevention 
— keeping ecological damage from 
happening in the first place — must take 
priority over the job of restoring or curing 
the damage already done. Reporting/
disclosure has great dissuasive impact on 
potential wrongdoers: The known polluter 
will find it more difficult to do further harm 
to the environment; he will have difficulties 
getting credit and getting a good price for his 
real estate; he will suffer social discredit. In 
short, the possibility of society’s getting 
ongoing access to knowledge about 
unfulfilled ecological obligations will reduce 
the number and importance of unfulfilled 
obligations in a relatively short time.

Requirements

There are fundamentally two requirements 
for land registries to report measures to 
restore ecological legality:

1. Environmental violations that can be 
physically pinpointed: whereas land registries 
are organised on a territorial basis, it is 
necessary to pinpoint which territory the 
ecological offence affects.

The land registry as a medium for guaranteeing punitive measures in the environmental realm

33

This requirement is easy to meet. If we take 
into account the fact that registry 
information deals with land, subsoil and 
continental waters (and it would not be too 
hard to extend the range to include air or 
atmosphere, whether in connection with the 
underlying land or not), ecological 
wrongdoings can be connected with the 
territory both by delimiting the affected 
territory (land, subsoil or flight area) and by 
pinpointing the location of the polluting 
source of emission. It is generally quite easy, 
for example, to spot the origin of pollutant 
atmospheric emissions (chimneys, exhaust 
pipes), aquifer contamination, radioelectric 
emissions, sound waves and light pollution, 
just to mention a few cases, just as it is easy to 
fix the location of the use of pollutants in 
agriculture or mining or the abusive felling 
of forests.

In each case, the information on the 
violation would be given in connection with 
the land causing or affected by the 
environmental offence, and without 
prejudice of the possibility of also giving the 
names of the persons subject to ecological 
proceedings, if applicable national legislation 
deems that information necessary.

2. The possible violator’s right to a defence: A 
second indispensable requirement of land 
registries’ disclosure of measures to correct 
the ecological situation is that the 
administrative or judicial proceeding must 
state that the registered holder of the title in 
question has had the opportunity to be 
heard, as a means of ensuring the right to 
legal defence, which is acknowledged in all 
legal ordinances throughout the European 
Union.

The object of registry information

The land registry’s protective work must 
extend to both administrative procedures 
and jurisdictional procedures; and to both 
procedures initiated by public authorities 
and those lodged by private persons, when 
national legislation gives private persons that 
faculty.

1. Administrative proceedings:

(a) Initial phase: administrative proceedings 
to punish ecological transgressions must be 
the registered as soon as they are initiated or 
filed. Reporting that a procedure has been 
filed is probably one of the most effective 

precautionary measures the law can take: 
When everyone involved knows there is a 
proceeding underway to restore 
environmental legality, compliance with the 
decision at the close of the proceeding is 
ensured, it is more difficult to commit fresh 
transgressions and the owners of other 
nearby territories will be on the alert. All in 
all, reporting the procedure helps make the 
efficacy of the restorative measure that is 
eventually taken all the greater.

Reporting could be expanded to include not 
only the fact that a proceeding has been filed 
and concrete precautionary measures (e.g. 
temporary suspension of activities that may 
prove harmful to the environment) taken, 
but also the essential steps of the procedure. 
Making them a matter of public knowledge is 
considered useful.

(b) Final phase or decision: a final decision 
has been handed down on an administrative 
proceeding, finding that an environmental 
crime has been committed and punishing 
the guilty party. The land registry can do the 
vital job of making the public at large aware 
of that decision.

This information is independent of the 
information about the lodging of the 
proceeding, and it can be given even if the 
information on the lodging of the 
proceeding was not reported for any reason.

The detailed list of all the actions that 
enforcement of an administrative ecological 
decision can lead to goes beyond the scope of 
this paper, and it may vary for reasons of 
legislative advisability or special cases in each 
nation’s laws. Therefore, just as an example, 
we shall examine some of the most important 
actions involved in enforcement.

A decision on an administrative proceeding 
can result in an obligation to restore the 
polluted situation to the way it was before the 
illegal activity was committed, or an 
obligation to pay damages when restoration 
is not possible, or an economic penalty. 
There is also the possibility of combining 
various of these measures. If the proceeding 
finds that there has in fact been no illegal 
activity, we will clean the land’s record by 
cancelling all reporting of the already-
registered filing of the proceeding.

Disclosure of the obligation to restore the 
ecological damage done:

34

Land and commerce registry as an instrument for sustainability

The land registry will give information about 
the decision ending the administrative 
proceedings and imposing obligations of 
action on the environmental violator (or 
obligations of subsidiary performance by the 
administration at the violator’s cost, if the 
person condemned to perform the 
obligations fails to do so voluntarily).

The registry will also report any prohibitions 
a decision calls for that imply abstention 
from or the obligation not to do certain 
activities that are considered noxious, or that 
restrict such activities to the limits of what 
legislation considers tolerable. This can 
happen in a multitude of fields, inter alia, 
abusive felling of forests, prohibited or 
restricted crops, use of fertilisers, sound 
pollution, light pollution, radioelectric 
pollution, dumping into aquifers, garbage 
and waste dumping, atmospheric pollution, 
etc.

Reporting of economic penalties
Here, the report/information from the land 
registry plays a double function: not only to 
enable the population in general to know, 
but also to serve as a legal guarantee of 
collection of the sums owed.

This heading includes penalties in the strict 
sense (fines given by the authorities in their 
policing capacity) and also indemnities the 
violator must pay subject to the broader ‘the 
polluter pays’ principle.

An important point to stress is that, in its 
function as report/guarantee, an 
administrative decision can affect not only 
the land where the ecological wrongdoing is 
located, but also any property belonging to 
the violator (the violator must secure 
compliance with any penalties or indemnity 
payments using any assets or rights of 
economic value he has inside the European 
Union).

Under some nations’ legislation, this 
category of reportable penalties also includes 
the possibility of penalty condemnation or 
compulsory deprivation of the assets of an 
environmental violator who persists in non-
compliance.

2. Action by injured private persons:

European national legislations’ compliance 
with Principle 10 of the Rio Declaration on 

effective access by private persons to judicial 
and administrative environmental 
procedures is widespread.

Such access can be provided in various ways, 
and all of them can be the object of general 
information through land registries:

(cid:127) Report: private persons can go to the 

competent public administration, report 
that illegal activity is taking place and ask it 
to act. The registry will report the report, as 
it were, just as it reports any administrative 
proceeding, and the registry’s record need 
not state that the proceeding was triggered 
by a private report.

(cid:127) Public action: recognised by many nations’ 
laws as a prerogative of private associations 
or a minimum number of persons seeking 
to defend a general interest. Public action 
can also be reported by the registry when 
ordered by the competent judicial 
authority.

(cid:127) Jurisdictional procedures by private 

initiative: in the sense intended here, this is 
the possibility of private persons’ gaining 
access to the courts to protect their rights 
against some public or private action that 
goes against their ecological rights.

In response to an illicit action by another 
private person, the injured parties may lodge 
any and all legal action aimed at restoring the 
violated environmental situation or winning 
indemnification for damages. Registry 
reporting in these cases must be extended, 
similarly to what we have seen for 
administrative proceedings, to cover both the 
filing of the judicial claim and the reporting 
of the sentence, or the establishment of such 
guarantees as the court deems necessary for 
compliance or the economic indemnity, if 
any.

Private citizens can also oppose public 
administration actions that violate their 
environmental protection rights. National 
legislations acknowledge that the persons 
affected have the capacity to file 
administrative and jurisdictional appeals 
against authorisations and licences that 
impair their ecological rights. Such appeals 
and claims can also be reported in land 
registries for general knowledge.

The land registry as a medium for guaranteeing punitive measures in the environmental realm

35

Conclusions

One of the fundamental aspects of land 
registries’ connection with environmental 
protection and defence of compliance with 
ecology legislation is the reporting of 
measures to restore an upset environment 
and penalise those guilty of upsetting it.

The reporting and information land 
registries give can encompass all the aspects 
involved in the restoration of the land-related 
environmental balance in one or more 
Member States. We have seen that the vast 
majority of ecological imbalances are related 
with or can be located in land.

The information land registries provide is 
effective in at least two ways: when the filing 

of an administrative proceeding, or a 
decision on an administrative proceeding, or 
the lodging of a claim by a private person is 
reported by the registry, everyone and 
anyone can find out about it and nobody can 
claim ignorance. The decision thus has much 
greater possibilities of actually being 
complied with.

In the second way, registry reporting serves as 
a guarantee of voluntary or mandatory 
compliance with judicial or administrative 
decisions imposing economic sanctions or 
awarding payment for damages. Effective 
management of ecology penalty policy must 
not pass up any opportunities afforded by a 
land-based institution such as the land 
registry.

36

Land and commerce registry as an instrument for sustainability

4. The registry office and 

environmental information

4.1. The land registry as an 

environmental information office

could use them in everything they see fit to 
better divulge environmental information.

Antonio Giner, Land registrar

The land registry, as an institution created by 
States to guarantee legal certainty in 
immovable property transfers, is organised as 
a network of offices. Land registry offices 
have essentially the following characteristics:

(cid:127) They are public offices in both senses of the 

word: they depend upon the public 
administration, and they are open to the 
public.

(cid:127) They are organised on a territorial basis, 

and they are strongly connected to the land 
in their territory.

(cid:127) They have a direct connection with the 

different public administrations.
(cid:127) They have a certain inter-European 

connection.

(cid:127) They are equipped with advanced 

technological resources.

(cid:127) They are handily nearby for citizens.
(cid:127) They are manned by citizens who hold 

thorough legal qualifications.

These features have made it easy for public 
administrations to use land registry offices 
for other functions in addition to their 
primary function: tax functions, consumer 
protection and information, urban 
development-related functions, penal 
functions, etc.

The proposal we defend is to use registries as 
environmental information offices. We will 
take full advantage of already existing offices 
to accomplish one of the basic principles of 
all environmental policy: the right to access 
to information. The idea would not be just to 
lay a connection between the land registry 
and environmental activities involving the 
physical or legal modification of immovable 
property, but to provide information in the 
broad sense. European registries can furnish 
the window where public authorities with 
environmental responsibilities can put their 
policies on display. Some possible 
embodiments of this new facet are suggested 
herein, but we would like to stress how open 
the new possibility is: by making registries 
environmental offices, the public authorities 

4.1.1. Introduction
The land registry is an institution whose 
origin can be traced fundamentally to the 
need to provide the real estate market with 
an instrument of legal certainty. With 
antecedents dating back to ancient Egypt and 
classic Greece, the modern institution of the 
registry developed during the 19th century as 
real estate transactions gradually grew in 
importance. The State was obliged to take a 
hand in regulating the market by devising a 
safety mechanism to ensure property buyers 
that the persons transferring ownership were 
the true owners and that there were no more 
burdens or encumbrances on the property 
than the potential buyers are aware of. To 
accomplish that, European laws created 
registries where the title to immovable 
property and all the burdens and 
encumbrances on immovable property are 
recorded.

In order to organise these registries, States 
then proceeded to create public offices 
where the public function of registration was 
to take place. So, when we try to define the 
land registry, we can emphasise its essential 
or institutional aspect or its adjective aspect 
as a public office. Thus, the land registry is 
the institution created to provide legal 
certainty for immovable property trading, 
while the registry office is the public office 
where the functions of the institution of the 
registry take place.

Let us examine this ‘registry office’ first of all. 
Then, we shall see how one of the basic 
principles of all environmental action is to 
provide information about the condition of 
the environment. Lastly, we shall see how it is 
possible to weave the registry office into the 
environmental information network.

4.1.2. The registry office
Let us try and analyse the registry office and 
decide if it is fit for other purposes, especially 
being made into a genuine environmental 
information office. To do so, first we must 
examine the characteristics of registry offices, 
and then we shall examine other functions 

The registry office and environmental information

37

land registries perform in addition to 
registration-related functions.

The registry office has the following 
characteristics, which describe it:

(a) It is a public office
The registry office is truthfully a public office 
in both senses of the word: it is an office that 
forms part of the public administration, and 
it is an office open to the public to inform 
citizens about its contents.

It is the State which creates the registry for 
the purpose we have already mentioned: real 
estate market certainty. Registry offices are 
not created or organised by real estate 
market operators, but by the State, who plays 
the part of regulator to provide citizens with 
the information they need so that their 
transactions will take place under fair and 
equal conditions. The State creates the 
registry office, it regulates the composition of 
the registry office, it assigns the registry office 
its contents and functions and it regulates the 
procedure of registration and information. 
The registry office is therefore an office of 
the public administration. The functions it 
performs and the method by which it 
accomplishes its purposes are set by the State 
by law. It is not a private entity; it is the State 
itself, organising itself in pursuit of an end 
characteristic of itself.

Furthermore, the registry office is an office 
open to citizens, who can go there to check 
up on the legal situation of immovable 
property and register their rights to 
immovable property. European citizens know 
about registries, and they go to registry 
offices when they need legal information on 
real estate. Therefore, registry offices are 
offices whose structure is prepared to receive 
the citizen and give him information, as that 
is their main raison d’être.

(b) It is an office organised on a territorial 
basis
When we say that the registry office is an 
office organised on a territorial basis, we 
mean that in several ways:

First, the object of the land registry is 
territory, i.e. land or immovable property. 
The registry office is created and prepared to 
provide information about land. This 
information is primarily legal in nature, but 
later we shall see how this territorial 
connection enables the land registry to 
extend its informative powers to other 

matters regarding land and the action of 
public administrations (urban development, 
farming, taxes, etc.).

Second, States have organised the institution 
of the registry by creating a network of 
offices, each having a specific slice of 
territory under its mandate. Each public 
office informs about the legal situation of the 
immovable property located within its 
territorial bounds. Actually, all European 
territory is divided up into registry districts of 
one size or another, and in each district there 
sits a registry office holding exclusive 
competence over that piece of territory. The 
registry is an essentially territory-based legal 
institution on property. Legal information on 
immovable property can only be provided by 
the competent registry office. This essential 
characteristic of the registry’s set-up involves 
the creation of a network of offices tightly 
bound to the territory over which they stand 
guard.

Moreover, and as a result of all the foregoing, 
the registry office belongs to a decentralised 
system. It is not a single office, but a network 
of offices that are nevertheless inter-
connected by telematic networks and an agile 
communications system, and they have a 
central organisation that provides them all 
with the same standard of human and 
physical resources and technical advisory 
services.

(c) It is an office connected with the different 
public administrations
Registry offices may depend organically on 
States or decentralised portions of States, 
such as regions, federated states or cantons, 
depending on the system each Member State 
has for distributing its powers. Nevertheless, 
this assignment of powers does not prevent 
registry offices from having an agile, fluid 
connection with other public administrations 
that act in the real estate market in a 
regulatory or operational capacity. So, on the 
one hand, registries apply rules given out by 
different competent public administrations. 
On the other hand, registries register 
property acquired or transferred by different 
administrations or public bodies.

(d) They are offices with inter-European 
connections
For years, the registry offices of all the 
countries of the European Union have been 
involved with one another in an ongoing 
relationship. Through international 
congresses held annually by Cinder (the 

38

Land and commerce registry as an instrument for sustainability

International Centre of Registration Law), 
European registrars meet with registrars from 
other countries to study and discuss 
applicable legislation, propose legislative 
improvements to help them achieve their 
purposes and share the experience they have 
had in their own countries.

(e) They are offices well equipped with 
technical resources
Registrars have to handle legal information 
on immovable property, so they have been 
required to equip their offices with the most 
modern technologies so as to do their job 
with dispatch and security. Major internal 
networks have been developed to enable 
information to be facilitated to citizens 
without their having to go in person to the 
registry office. For that reason we can say that 
in the registry, as in many other fields, there 
are also what are called virtual offices, which 
multiply the amount and speed of the data 
provided. The same technical resources are 
likewise used to forward information of 
interest to other public administrations.

(f) They are offices close to the citizen
Registry offices are places that citizens find 
readily accessible because of their territory-
based structure discussed above (each citizen 
has one nearby) and their public nature. 
Citizens know about their registry offices and 
go to them whenever they engage in real 
estate dealings.

(g) They are offices manned by highly-
qualified officials
States head registry offices with officials who 
are well-versed in legal and fiscal matters and 
must pass demanding admission tests that 
require demanding preparation to ensure 
that they do their job right.

If we examine the functions of the land 
registry and the characteristics of the registry 
office, we might wonder whether the office 
could possibly house any functions other 
than land registration.

The answer is yes. States created and 
organised registry offices as mechanisms or 
instruments for performing the function of 
making the real estate market certain, i.e., 
property registration. Nevertheless, registry 
offices’ many useful traits seen above have 
made it easy for States to use registry offices 
for other functions as well. And not only are 
they used by the administration they are 
organically dependent upon; they are even 
used by other administrations, thanks to their 

special characteristics, the chief one being 
their territorial nature. For example, registry 
offices can stretch far beyond their original 
intention to perform some of the following 
functions.

Fiscal functions: Registry offices have been 
used by States as a mechanism for 
guaranteeing payment of different real estate 
taxes. Under that arrangement, either the 
taxes on the real estate transactions brought 
in for registration get paid (because payment 
is a requirement that must be met before the 
transaction can enjoy the registry’s 
protection), or else taxes are paid directly at 
the registry office. Likewise, there are 
mechanisms whereby the registry cooperates 
with various administrations interested in 
collecting property taxes by sending in 
information periodically. In addition, since 
the officials in charge of registry offices have 
legal training, they are frequently assigned 
the task of managing and collecting taxes 
such as transfer tax and inheritance tax. 
Furthermore, the tax administration 
frequently uses registry offices as a source for 
tax-related information.

Consumer protection functions: Real estate, 
especially housing, is one of the areas where 
public consumer protection action has the 
greatest impact. Registry offices are used as 
genuine consumer information offices. In 
addition, registry offices inform consumers 
about tenure security mechanisms and 
cooperate with consumer organisations and 
associations and public bodies in charge of 
consumer defence, to study mechanisms and 
proposed measures for making the real estate 
market more certain.

Urban development functions: Urban 
development involves a series of operations 
that are all reflected in the land registry: 
property is physically altered, titles change 
hands, assets are encumbered. If there is to 
be the right kind of connection between 
these things and the registry, there has to be 
constant contact between urban 
development authorities and registrars. 
Under urban development legislation the 
land registry is also entrusted with the 
function of reporting on the urban 
development situation of immovable 
properties in its territory. Likewise, registries 
cooperate with the administration in 
preventive and punitive work in the area of 
urban development discipline. For instance, 
registrars must demand that certain 
development requirements be met before 

The registry office and environmental information

39

certain juristic acts (such as declaration of 
construction, land transformation and lot 
division) can be registered. Likewise, 
registrars inform the administration of 
certain operations that may violate urban 
development rules.

Penal functions: Registry information has 
been used to avoid and penalise activities 
such as money laundering, tax evasion, 
frauds, etc.

4.1.3. The need to extend environmental 

information

One of the basic principles governing 
environmental policy is the right to access to 
environmental information.

In fact, Principle 10 of the Rio de Janeiro 
Declaration on environment and 
development of 14 June 1992 affirmed that 
‘each individual shall have appropriate access 
to information concerning the environment 
that is held by public authorities, including 
information on hazardous materials and 
activities in their communities, and the 
opportunity to participate in decision-making 
processes. States shall facilitate and 
encourage public awareness and 
participation by making information widely 
available’.

Before that, Council Directive 90/313/EEC 
of 7 June 1990 on the freedom of access to 
information on the environment laid upon 
Member States the obligation to make the 
necessary provisions for acknowledging the 
right of any person to access to the 
information on the environment held by 
public authorities.

In Spain, it is Act 38/1995 of 12 December 
on the right to access to information on the 
environment (revised by Act 55/1999 of 29 
December) which implements Directive 90/
313/EEC. Article 1, paragraph 1 of the act 
states, ‘All natural or legal persons that are 
nationals of one of the States comprising the 
European economic space or having his 
domicile in one of such States are entitled to 
access to the environmental information held 
by the competent public administrations, 
without the obligation to prove a given 
interest and always with the guarantee that 
his identity shall be confidential’.

Ensuring this right is one of the main goals of 
the European Environment Agency, as 
declared in Article 1 of Council Regulation 
(EC) No 1210/90 of 7 May establishing the 

European Environment Agency and the 
European Environment information and 
observation network. The regulation states 
that the European Environment Agency is 
created in response to the need to provide 
the Community and its Member States with 
objective, reliable, comparable information 
at the European level enabling them to take 
the requisite measures, inter alia, to 
guarantee that the public is properly 
informed about the state of the environment.

Moreover, most of the Agency’s functions 
listed in Article 2 of the regulation have to do 
with this purpose. The Agency is especially 
assigned ‘to ensure the broad dissemination 
of reliable, comparable information on the 
state of the environment to the general 
public and, to this end, to promote the use of 
new telematics technology for this purpose’.

Therefore, access to information is one of the 
fundamental principles in environmental 
law, a key aspect in its implementation. In 
fact, some scholars stress the importance of 
environmental information as an instrument 
for heightening citizens’ awareness of their 
own environmental responsibilities, which 
will surely contribute, these authors reason, 
to environmental protection (the ultimate 
purpose of environmental legislation, 
Constitution, Article 45).

So, environmental information needs to be 
made readily available to citizens by means of 
mechanisms that make it easier to obtain and 
understand environmental information. 
Indeed, there is a well-known argument that 
says it is no good to regulate a right if in 
practice the right is impossible to exercise or 
if, in order to exercise it, one must tread a 
complicated path or use methods that are too 
costly for normal citizens. Such difficulties 
make the right (in our case, access to 
information) purely theoretical.

Ramón Martín Mateo has written on the 
subject of the right to environmental 
information, ‘To have information available 
is one thing; it is quite another for that 
information to be accessible, be it to private 
persons or the administration. The 
difficulties from the citizen’s standpoint can 
be traced to such common circumstances as 
distance from the responsible public centres, 
ignorance about the scope of the different 
administrative levels and the very lack of 
knowledge about environmentally relevant 
activities being planned or underway, which 
are not usually trumpeted about [...] But 

40

Land and commerce registry as an instrument for sustainability

even if the public administrations hold the 
requested data and wish to convey it, they will 
not always be in a physical position to do so, 
especially in large complexes where it is 
difficult to physically locate files and 
documents and identify which specific 
bureaus are handling the affair. It will be 
necessary to create specialised liaison and 
tracking offices to do the tasks that many 
public authorities are trying unsuccessfully to 
tackle. And in addition, some legislations 
seem to assume an apathetic administration 
attitude; the administration is not obliged to 
locate information if the applicant cannot 
identify and describe what he wants to know 
with a certain amount of precision, and the 
applicant is (understandably) not qualified to 
run a computer search on the registries and 
archives himself’.

4.1.4. Use of the registry office as an 

environmental information office
So far, we have described the registry office 
and reached the conclusion that it is well able 
to accomplish other activities besides its 
principal or original job. And we have 
underscored the need to expand 
environmental information as the main goal 
for public action on the issue: to enable the 
public to have good information available 
about the state of the environment.

All that remains for us to do is to 
demonstrate that the registry office can help 
in this task of divulging environmental 
information among citizens by becoming a 
genuine environmental information office. 
Furthermore, land registries may be drawn 
into what is called the European 
Environment information and observation 
network, since they are a national institution 
that meets all the characteristics listed in 
Article 4 of Regulation (EC) No 1210/90. In 
addition, the registry office can be used by 
the authorities to gather useful data for 
evaluating the territory’s environmental state 
and thus planning the proper environmental 
protection measures.

As we have seen, the registry office has one 
primary or original function: to house the 
land registry. However, as we have also seen, it 
has all the characteristics it needs to perform 
other functions of interest to the authorities. 
Among these functions, we propose to 
include that of providing citizens with a 
nearby venue where they can gather 
information about the situation of the 
environment, both at the general scale and 
especially with respect to the territory under 

the registry office’s keeping. The registry 
office could also be used by citizens to send 
in information of interest to the competent 
administration, both by drawing on the 
immense body of information on file in the 
registry and by using the registry office 
directly as a territorial bureau of the different 
competent administrations (local 
governments, regions, nations, the European 
Union).

Citizen information is one of the backbones 
of environmental policy, as we have seen 
above, and the authorities are using every 
advisable measure to achieve that goal. 
However, in order for this information to be 
effective, it must satisfy a series of 
requirements:

(cid:127) We must ensure that information is 

disseminated thoroughly enough. There is 
no point in collecting long reports if those 
reports are going to be inaccessible to 
citizens because of the kind of language 
they use or the difficulty of physical access. 
What is needed is a guaranteed network of 
thorough dissemination to give all 
European citizens easy access to 
information.

(cid:127) There must be some guarantee that the 
dissemination of information will ensure 
the necessary equality of opportunities. 
Never must certain citizens get easier access 
to information than others, for technical or 
any other reasons.

(cid:127) The information must be provided 

responsibly and with sufficient knowledge. 
Mere access to a database will not suffice. 
Criteria must be provided for interpreting 
the information and means must be 
provided for evaluating it.

(cid:127) Major technical resources and materials are 

required so the information can be 
computer processed and quickly 
disseminated.

(cid:127) The public authorities must mediate and 

supervise to guarantee equal opportunities, 
to ensure that the information is accurate 
and to safeguard it from any manipulation.

The registry office meets those requirements:

(cid:127) It is a public office to which citizens have 

free and equal access.

(cid:127) It belongs to the administration, which can 
supervise the information to ensure its 
sources and accuracy.

(cid:127) It is structured on a territorial basis, and 

citizens are already accustomed to turn to it 
for real estate information. It would seem 

The registry office and environmental information

41

quite natural if the information in the 
registry were to extend to environmental 
aspects of the land where registered 
property is located, since such aspects must 
be increasingly taken into account in 
appraising the worth and suitability of real 
estate.

(cid:127) Its territory-based structure guarantees its 
nearness to the citizen. This question is 
especially important. New technologies can 
keep people from having to travel and 
enable the dissemination of information 
quite easily. However, if we limit the 
information available to what is conveyed 
online, we condemn to illiteracy all the 
layers of society where there is no access to 
information technology or, even more 
importantly, no knowledge of how to use 
information technology. We must continue 
facilitating information at handy, nearby 
institutions that can advise the citizen and 
allow the greatest possible dissemination of 
information. That will also ensure full 
coverage of the territory as called for in 
Article 4 of Council Regulation (EC) 
No 1210/90 cited above for membership in 
the European Environment information 
and observation network.

(cid:127) Registry offices already have the necessary 

technical resources to accommodate 
environmental information and the right 
means for facilitating it to citizens. They 
also have highly trained human resources 
to facilitate the information and interpret it 
correctly.

(cid:127) Their direct and indirect dependence on 
various administrations makes it easier for 
registry offices to act in matters like this, 
where competence is split up among 
different administrations (local 
governments, regions, nations, European 
Union). Registries can receive information 
from them all for dissemination and send 
information to them all for policy work.
(cid:127) The land registry is an institution that is 
going to be increasingly linked to the 
environment, both with regard to direct 
policy (physical and legal changes to 
properties) and with regard to prevention 
and punishment. All these particulars are 
studied in other sections of this paper. 
Therefore, environmental cooperation 
beyond the strict bounds of registration is 
not going to be foreign to the operation of 
registries.

(cid:127) There are registries in every State of the 

European Union, so environmental policy 
could be spread throughout the entire 
Union, without prejudice of special 

national laws on the organisation and 
operation of registry offices.

Therefore, we can conclude that the registry 
office can be used as a means for obtaining 
and disseminating environmental 
information. The concrete cases in which it 
could be used are absolutely unlimited. In 
reality, it could be used for anything the 
environmental authorities see fit. As an 
example, we submit the following open list:

(a) One embodiment of the registry office as 
an environmental information office would 
be very simple: to include the addresses of 
environmental institutions on the registries’ 
web pages. This is very simple but also quite 
effective. Most Internet users get to web 
pages through links from other web pages. 
Land registry pages have a high number of 
hits, and their visitors use them basically to 
submit electronic queries for registry 
information. No doubt those citizens would 
be just as interested in checking the 
environmental rules affecting their property 
or the territory where their property is 
located, future plans and policies, technical 
reports on present or future actions, and so 
on. They could also get to environmental 
institutions’ web pages without having to 
remember the address, just by clicking on the 
link to the desired institution.

(b) Land registries can be used to ensure that 
necessary information is made public before 
and after the environmental impact 
assessments and studies regulated by 
Directive 85/337/EEC of 27 June with the 
amendments in Directive 97/11/EC. 
Environmental impact assessments or studies 
are required before certain activities deeply 
involved with land (e.g. industrial activities, 
farming activities, public works) can be 
authorised. It is this set of studies and 
technical systems that enables us to estimate 
the effects a given project, set of works or 
activity would have on the environment. 
These studies must endure a public 
information stage (in Spain, under Royal 
Legislative Decree 1302/1986 of 28 June, 
amended by Royal Decree Law 9/2000 of 6 
October transposing the aforesaid directives 
and Royal Decree 1131/1988 of 30 
September implementing the Royal 
Legislative Decree and the Royal Decree 
Law). The land registry, with its special 
characteristics (especially its special territory-
based structure), can be a highly useful tool 
for making sure that information truly 
reaches citizens, so they can submit any 

42

Land and commerce registry as an instrument for sustainability

arguments they see fit. Likewise, if 
environmental studies are posted in registry 
offices, citizens could check up on 
compliance with studies, which would 
increase the efficacy of the administration’s 
policing work. All that could be achieved, 
while the confidential aspects of information 
referred to in Article 8 of the aforesaid 
Spanish decree law could still be protected.

(c) The registry office can do double duty 
helping the authorities to disseminate its 
papers and reports among the citizenry. 
Public papers can often only be accessed 
through specialised organisations, so the 
public at large remains ignorant of them. 
Registry offices could enable public papers to 
reach a wider audience by announcing them 
in catalogues. Catalogues could be ordered 
through and picked up at registry offices, 
which could work as order and sale or 
delivery points. The registry office could 
likewise be used to announce the existence of 
such papers.

(d) The registry office can be used as the 
place where citizens file all their applications 
to environmental authorities about specific 
actions, subsidies, accreditation of 
requirements, etc. Registrars could send 
information on to the competent authority, 
who could answer right back through the 
registry office. Registries would be acting the 
part of local bureaus for public 
environmental institutions, taking advantage 
of the extensive system of registry offices and 
their handiness for citizens. Likewise, given 
the fact that there are various levels of 
institutions with competence in the matter 
(municipal governments, regions, States, the 
European Union), the registry office could 
work with them all. Then, citizens would 
know just where to go no matter what 
authority they wish to address.

(e) The registry office could become a 
genuine environmental consultancy, where 
citizens could go for any questions, 
applications, demands, etc. Likewise, they 
could receive information about applicable 
rules, regulated procedures, competent 
institutions, etc.

(f) In registry offices, citizens could check 
environmental information on the territory 
within the office’s bounds as reflected in 
image databases. Registries and 
environmental authorities must use the same 
databases in that case, and the citizen must 
be allowed to examine them to see whether a 

certain property is affected by certain 
limitations or subject to certain obligations. 
Much information about soil condition, 
infrastructure and so on could be provided at 
the registry, whether by allowing citizens 
direct access to graphic bases or by giving out 
hard copies.

(g) Registrars promote the publication of 
numerous technical and scholarly documents 
through their policy of publishing all work of 
importance for their function. Obviously, the 
environmental question is of importance for 
their function, and therefore registrars ought 
to promote the publication of work on this 
subject and divulge it in registry offices.

(h) Registries have extremely extensive 
databases about the immovable property 
located in their territory. They can be most 
useful to the authorities for environmental 
situation assessment and task planning. Of 
course, legal information (on owners, 
burdens, etc.) cannot be transferred en 
masse. The information that is pertinent 
from the environmental standpoint, however, 
is a different kind of information: the extent 
of urban expansion or development, 
outlooks for expansion, farm and agricultural 
censuses, forestry activity, expansion of 
infrastructures, influence of public action on 
the said activities, public properties, etc. 
There is no end to the list of possibilities for 
the information available. In reality, the 
registry’s is the biggest land database there is.

To wind up, for the registry office to be used 
correctly as an environmental information 
office, there are some requirements that 
must be met:

(cid:127) Cooperation protocols with the different 

competent administrations must be signed.

(cid:127) The data-processing equipment available 

and access to the respective databases must 
be coordinated.

(cid:127) The people in charge of running these 

activities must be trained.

(cid:127) Registries must be given access to the 

authorities’ image databases.

(cid:127) All these actions need to be tracked and 
checked daily to ensure their efficacy.

(cid:127) The necessary resources must be provided 

for the registry office to operate as an 
environmental information office. Those 
resources can be direct (subsidies or direct 
government investment)or indirect 
(funding of expenses with resources 
obtained from other registry functions, in 

The registry office and environmental information

43

whichcase there must be some guarantee 
that those resources will be sufficient).

4.2. The environmental information 

associated with image databases 
of properties in the land registry

Jorge Requejo Liberal, Land registrar

There are three ways of looking at the 
possibility of associating environmental 
information with the graphic representation 
of property registered in land registries:

(cid:127) Administration guarantee: With land 
registry information in hand, the 
administration can discover what 
properties lie within any space subject to 
environmental action (protected spaces, 
polluted areas, noise corridors, etc.) and 
who those properties’ owners are. Thus 
informed, the administration can pack real 
efficacy into its measures or specific set of 
rules for each environmental action, no 
matter who the owner is at the time. In 
addition, the administration can use the 
land registry’s property-associated 
information to address the owner directly, 
and that facilitates the application of any 
penalties on landowners who commit 
environmental violations (unlawful 
planting, indiscriminate felling of trees, 
illegal urban development or activities 
prohibited by legislation).

(cid:127) Citizen protection: Through this 

instrument of disclosure, citizens can see 
what environmental limitations are on the 
land they own or are considering buying, 
and what, in short, are the faculties 
involved in the proprietary rights to a given 
piece of property.

(cid:127) Full information: The territory-based 

structure of the land registry in Spain and 
its method of organisation by lots enables it 
to cover the entire country in full and tag 
each piece of property with any 
information of importance to the 
property’s legal profile. Thus, in a single 
blow, the registry reveals all the 
interrelations between pieces of property 
due to any action involving land, whether 
the action has to do with urban 
development, farming or the environment.

By identifying registered properties as closely 
as possible with the actual properties existing 
in reality outside the registry’s walls 

(especially their true environmental 
condition), we can offer such reliable reports 
of their state that in practice registry 
reporting will become a vital instrument for 
guaranteeing all legal situations of 
immovable property, even those that affect 
factual data.

Graphic representations of property and 
updates thereof provide knowledge of the 
evolution of the land, its changes and the 
environmental impact it may have 
experienced from any real estate activity of 
environmental relevance (lot division, new 
works, housing developments, etc.).

Land registries have incorporated the 
graphic representation of property based on 
support images (digital orthophotos and 
1:25 000 IGN cartography) as an approach to 
locating property. The target properties are 
depicted in vector format organised in 
different layers, and the layers are grouped 
by subjects, so any changes in the physical 
configuration can be incorporated as they 
occur. These tools are always used as a 
complement of the alphanumeric data on 
file in the land registries’ books. Altogether, 
the procedure enables us to integrate the 
legal information with the graphic 
information on the property in question.

All graphic information held in land 
registries is georeferenced using direct 
location coordinates. Other georeferenced 
data can also be incorporated, and the 
different bits of information can be 
associated with one another. That is, after all, 
the end goal being sought. As many layers of 
information as desired can be incorporated. 
There is no limit.

The accuracy scale we work with in the 
graphic identification of registered property 
is as follows:

(a) In orthophotos, the resolution is one 
pixel:50 cm.

(b) Urban lot cartography is at a scale of 
1:1 000.

(c) Rural lot cartography is at a scale of 
1:5 000.

So, the closer the associated environmental 
graphic information data are to these 
parameters, the more precise is the 
information we can obtain.

44

Land and commerce registry as an instrument for sustainability

4.2.1. Data-processing application
The data-processing application land 
registries use for handling graphic data 
(DinaMap) was developed specifically for 
processing these kinds of data (image bases 
of properties). It is an easy-to-use tool that is 
simple to adapt. It uses data-handling 
commands under a generalised format, with 
icons representing each of its functions.

(cadastral cartography). That picture is 
superimposed on the pictures we have used 
to get a fix on the specific area where the lot 
we are looking for is supposed to be. Having 
fixed that image and matched the graphic 
data on the lot with the data in the land 
registry, we can be sure we have found the 
graphic identification of the registered 
property.

DinaMap is adapted to the user’s needs, 
because it was designed exclusively for the 
use to which it is put in land registries, the 
specific function of graphic identification of 
registered properties; and because it is so 
simple, no special user training is required.

The minimum hardware necessary to run it is 
practically elementary, and it does not 
require any special components apart from 
those with which all land registry offices are 
equipped for handling alphanumeric 
databases of registered property titles and 
burdens.

All the data the application handles (graphic 
and alphanumeric) can be printed out using 
any conventional printer, although the 
quality of the result, especially the graphics, 
will depend largely on whether the printer 
has black and white, colour or high-
resolution capabilities.

Any graphic information provided in 
standard format (DXF) can be entered. The 
information is perfectly compatible with the 
information generated by the programme 
the Professional Association of Registrars 
uses, yet it can still be used with other types of 
databases.

Functions
As we move around the screen, we see the 
picture of the portion of territory we want 
information on. We can orient ourselves by 
looking for the usual landmarks such as 
highways, roads, rivers and the names of the 
places we are seeing on the screen. Best of all, 
we can see the real orthophoto image, which 
we examine to zero in on the site at issue in 
our query, especially when we are looking for 
rural property. When searching for urban 
property, the most logical, simplest course of 
action is to use the property’s street name 
and number, as if we were looking up an 
address on a street map.

Once we have found the target spot, we call 
up the graphic of the area’s lot configuration 

We can do the same operation in reverse, 
starting with the descriptive data in the land 
registry’s database and asking the application 
to give us the graphic representations of all 
the properties that match that data.

4.2.2. Fundamental phases of incorporation
1. Install the image base system at the land 
registry (Geo-base):
— digital orthophoto of the mortgage 

district (available);

— cadastral lot divisions (available).

2. Obtain associated municipal graphic 
information:
— urban planning information.

3. Obtain georeferenced environmental 
cartography of the areas (protected spaces, 
coasts, polluted areas, etc.) (to be provided 
by the Thematic Centre, European 
Environment Agency or Generalitat de 
Catalunya).

We have enclosed some examples of what the 
picture looks like when we call up a montage 
of privately-owned property and the 
delimitation of the space to be supervised 
because of its environmental importance.

In the examples — which are, please 
remember, just examples — we have taken a 
gas pipeline, which is physically invisible 
because it runs underground but 
nevertheless does have major consequences 
for the land it runs through and therefore is 
considered potentially significant for other 
invisible applications (bird protection areas, 
noise corridors, protected natural spaces, 
etc.).

The other example we propose is the 
definition of a livestock thoroughfare and all 
the intrusions into it. This picture could help 
in taking the proper decisions and, if need 
be, recovering the area of public domain and 
public use that has been invaded.

Suggestions for possible applications

45

5. Suggestions for possible 

applications

Mariano Va Aguaviva, Registrar, Mataró Land Registry Number 1 
Mataró, Barcelona

Our study ought not to be limited to 
underlining the theoretical relationship 
between land registry and environment. 
Since we have demonstrated that the registry 
is useful as an instrument for the legal 
defence of the environment, that instrument 
must be put into practice immediately 
wherever no amendments of laws are 
required, until the necessary amendments 
can be made.

— The registry offices are equipped with the 
technology to perform the function and 
have experience handling image bases.
— The registrars in charge of the offices 
belong to experts’ corner task forces.
— The Catalonia Cartographic Institute has 

the proper maps.

— The European Topic Centre on 

Terrestrial Environment is located at the 
Autonomous University of Barcelona.

Those areas are the following:

(a) The European Agency
Environmental information from the 
European Agency could be offered online 
experimentally, after solving the issues of 
scale resolution and with the cooperation of 
the Department of Environment of the 
Generalitat (Government of the 
Autonomous Community of Catalonia) in 
the six registry offices that together service 
the district of Maresme, a territory of 400 km2 
in Catalonia, north of Barcelona. This district 
was chosen because:

— It is a relatively limited area but it 

contains a wide variety of types of land, 
including urban land, residential land, 
commercial land, farms, forests, natural 
parks, coasts and beaches.

(b) The Generalitat de Catalunya
The powers over the environment that the 
Spanish Constitution and the Statute of 
Autonomy give the Catalan Autonomous 
Community allow it to sign a cooperation 
agreement (text enclosed) between the 
Catalan Environment Department and the 
Spanish Professional Association of Land 
Registrars so that the 140 land and 
mercantile registries located in Catalonia can 
give legal coverage to environmental 
decisions made within the two institutions’ 
respective spheres of power.

(c) Registration institutions of the EU and 
adjoining countries
The means necessary for putting a European 
environmental information network into 
practice as an annex to the European registry 
information network.

46

Land and commerce registry as an instrument for sustainability

6. Environmental law and the

mercantile registry

Manuel Ballesteros and José Antonio Rodríguez Del Valle, 
Mercantile registrars, Barcelona

Disuse or desuetude is commonly admitted 
to be the greatest danger threatening 
environmental laws. For this reason, one of 
the legal techniques that needs reinforcing to 
make environmental laws effective is citizen 
participation, so that it is the citizens 
themselves who become the guarantors of 
compliance by the official levels involved, 
companies, public and private entities, and 
so on.

Of course, citizens can hardly participate 
without adequate information. The public 
has to be knowledgeable about the 
requirements the authorities have set for 
engaging in certain pollution-producing 
activities, the limitations it has set on given 
protected territories and so on — in short, 
knowledgeable about rules bearing on the 
environment. That makes reporting an 
instrument, a legal technique, that 
environmental law must use with zest to 
ensure its own efficacy.

Land registries and mercantile registries, the 
reporting institutions par excellence, can 
render great service in this task. Even more 
so if we take into account factors such as: (a) 
their long experience in the field of 
disclosing rights and legal situations, (b) the 
fact that registries use the latest in 
information technology, and (c) in addition 
land and mercantile registries form a 
network blanketing all of Europe and their 
individual offices are handily located for 
citizens.

Undoubtedly, the cooperation the mercantile 
registry, the chattel goods registry and the 
land registry can lend towards achieving 
more depth of reporting and efficacy in legal 
situations stemming from environmental 
rules differs from registry to registry, because, 
as we know, the three registry types differ 
from one another.

For instance, the land registry is a registry 
whose basic working unit is the piece of 
property (a portion of land) for which rights 
or contracts (depending on the registration 
system) concerning that property are 
registered. The mercantile registry, on the 

other hand, is a registry of persons, where the 
legal situations involving merchants are 
registered, whether the merchants are 
natural persons, legal persons (companies) 
or any other kind of entity (such as pension 
or investment funds). And the chattel goods 
registry in the Spanish legislative system is a 
registry of certain titles of ownership of 
chattel goods (including ownership of goods 
ranging from ships to industrial machinery, 
plus rights to stocks, crops or livestock as 
security), where general contract conditions 
are also registered in a section of their own.

Let us focus now just on what utilities the 
mercantile registry can offer environmental 
law, ignoring for the moment those that the 
other registries (land and chattel goods) 
have to give. We can say, without prejudice of 
other utilities, that the mercantile registry is a 
good instrument for reporting rules, 
limitations, administrative and judicial action 
and other types of action affecting 
companies, because it records all 
environmental situations or actions that it is 
believed ought to be given proper disclosure 
in the legal records of registered natural 
persons, legal persons and entities.

To that, we might add that the mercantile 
registry is the most effective instrument for 
reporting great masses of information, 
because it is the mercantile registry file that 
holds the kind of information third parties 
inquire after, the information germane to 
legal dealings between a given company and 
third persons. And the mercantile registry 
file is where company accounting 
information is posted, kept and made public, 
since companies are obliged to post their 
annual accounts with the mercantile registry, 
at least in some European legal systems. The 
concentration of all that company 
information in a single file obviously creates 
favourable synergies and magnifies the 
effects of reporting. Those same synergies 
would also benefit any environmental law 
information reported by the mercantile 
registry.

The list of the environmental situations or 
actions involving commercial firms and other 

Environmental law and the mercantile registry

47

entities registered in mercantile registries 
and advantageously disclosed by mercantile 
registries is certainly an open list. Perhaps 
these situations could be roughly classified 
into four groups:

(a) Administrative or judicial action. By this, 
we mean decisions taken by administration 
bodies with competence in environmental 
issues, such as decisions to grant 
authorisations or licences, take preventive 
measures or apply penalties. Also, judicial 
decisions the judicial authorities hand down 
on environmental matters where they have 
cognisance. All such decisions, both 
administrative and judicial, could in certain 
cases be advantageously reported through 
the mercantile registry.

(b) Eco-audits. It might also perhaps be 
expedient to use mercantile registries to 
report things having to do with the running 
of eco-audits, whether the point is to make 
public the membership of a given company 
in eco-auditing schemes, appoint an 
environmental auditor or post the auditor’s 
report with the mercantile registry to make it 
public.

(c) Environmental issues incorporated in 
companies’ annual accounts and reports.

(d) Registry reporting of emission right 
trading.

Next, we shall discuss each of these aspects 
separately.

(a) Administrative or judicial measures due 
to environmental action set down on the page 
(i.e. the legal record) of registered 
companies or entities in the mercantile 
registry
These administrative or judicial actions may 
be ‘preventive’ or ‘negative’, e.g. the issuing 
of warnings or preventive measures, the filing 
of penalising proceedings or the firm 
application of penalties; or they may be 
‘positive’, e.g. the granting of environmental 
certificates or subsidies or public or private 
loans for certain environmental projects.

It is obvious almost to the point of needing 
comment that, in certain cases, it is advisable 
for such administrative and judicial measures 
to be ‘reported’ by the registry, because 
reporting makes the measures known to the 
general public, and the suppliers and 
potential customers of the company in 
question are members of that public. Registry 
reporting is a strong reinforcement and also 

amplifies the stringency of penalties, and 
therefore it can magnify, for example, the 
dissuasive effect of sanction rules. Similarly, 
through reporting, the registry boosts the 
effects of ‘positive’ actions such as the issuing 
of environmental certificates, which can help 
enhance the company’s image.

So then, it is quite clearly good for legislation 
to provide for the possibility of giving certain 
administrative or judicial measures in matters 
of environmental law access to the mercantile 
registry as the best reporting system for them.

In any case, we feel that prudence should be 
our guide in deciding what measures would 
be better off with the ‘complement’ or 
‘reinforcement’ of registry reporting and 
what measures can dispense with it. For some 
measures, such as penalties, registry 
reporting may make the punishment 
unnecessarily harsh, and in any case it is not a 
good idea to pump up the list of items 
mercantile registries report unless really 
necessary, because an excess of information 
could muddy the clarity of the information 
provided and therefore hamper the efficacy 
of the preventive legal certainty system that 
the mercantile registry ultimately seeks to 
provide.

(b) Eco-audits incorporated in the mercantile 
registry
Council Regulation (EC) No 1836/93 of 29 
June 1993 enables companies in the 
industrial sector to voluntarily join a 
Community eco-management and audit 
scheme. The regulation was affected by 
Decision 97/264/EC of 16 April on the 
recognition of certification procedures and 
Decision 97/265/EC of 16 April on the 
recognition of the international standard 
ISO 14001.

Any company participating in the 
Community eco-management and audit 
scheme must adopt an environmental policy 
that defines the company’s objectives and 
principles of action in environmental 
matters, run an environmental analysis of its 
sites, establish an eco-management system, 
make an environmental statement and run 
periodic eco-audits.

All these things must be checked by an 
accredited, independent environmental 
verifier. The EEC regulation states that each 
Member State must establish a system for 
accrediting these verifiers and send in a list of 
accredited verifiers to the Commission, 
which will, with all the lists in hand, publish a 

48

Land and commerce registry as an instrument for sustainability

full list in the Official Journal of the European 
Communities. This list has already been 
published.

The regulation also states that companies 
participating in the eco-audit system will be 
included in a registry that the competent 
organisations must keep for that purpose.

Since the European environmental audit 
system (ordinarily known as the EMAS, or 
eco-management and audit scheme) was 
started up in 1995, it has grown and sown 
hope. Year after year, the number of EMAS-
certified companies has been growing 
exponentially. The same is happening, in 
greater numbers because of its wider sphere 
of influence, with the ISO system of 
environmental certification, whose validity in 
the European Union is admitted in Decision 
265/97 of 16 April, cited above.

The proposal on the table is to incorporate 
eco-audit data in the mercantile registry, or 
rather the organisation in each Member 
State where the legal history of companies is 
registered, or at least to allow voluntary 
incorporation if business owners so desire.

Such incorporation would or could involve 
several steps: (i) The fact that a given 
company or business owner has voluntarily 
joined the eco-audit scheme will have to be 
reported at the registry. To do that, the 
company or business owner will have to file 
an application to register the information 
with the registry, accompanied by 
documentary proof (under European Union 
and national legislation) that it has in fact 
joined. (ii) The eco-auditor’s appointment 
will have to be registered. The eco-auditor is 
the outside verifier chosen from the roster of 
officially-accredited eco-auditors to check the 
extent of the company’s compliance with its 
environmental commitments. Naturally, the 
auditor’s appointment cannot be registered 
until it has been confirmed that the auditor 
really is on the official roster of authorised 
auditors. (iii) Eco-audits will have to be 
posted periodically with the mercantile 
registry by the companies that have joined 
the eco-audit scheme and whose membership 
and eco-auditor’s appointment have already 
been registered as indicated in steps (i) and 
(ii) above. This information would be posted 
simply for the purpose of making the audits’ 
contents public; an eminently juridical 
organisation such as the mercantile registry 
has no business investigating the 
information, as it has no power to do so. And 
the same guidelines and criteria could be 

followed as are used for the annual posting of 
company accounts.

Certainly, at first glance, it may at appear that 
recording all these particulars in the 
mercantile registry is pointless. The decisions 
at issue will already have been reported in 
official journals that list, for instance, the 
companies belonging to eco-audit schemes, 
certified companies and authorised auditors. 
It is also true, however, that reporting these 
particulars in the mercantile registry does 
have incontrovertible advantages from the 
standpoint of making them public:

— Because the focal point for reporting 

companies’ legal and accounting life is 
the mercantile registry, and therefore 
from the standpoint of greater reporting 
efficacy and citizen access to data, we 
would do well to strive to the utmost to 
centralise all the information on 
companies at a single point, so citizens 
do not have to make the rounds of 
different centres to obtain information 
that they might otherwise obtain from a 
single spot.

— Because some of the particulars involved, 
such as who the specific eco-auditor of a 
company is or what the eco-audits say, are 
not properly reported at present.

Incorporating these data in the mercantile 
registry as proposed herein would then 
report data that are not reported at present. 
In any case, it would go far to facilitate 
queries into and knowledge of the 
information at issue.

(c) Environmental questions acknowledged, 
quantified and reported in companies’ 
annual accounts and annual reports
Another important issue in the matter of 
reporting environmental aspects at the 
mercantile registry (or whatever organisation 
in charge of reporting the legal life of 
companies in each State of the Union) is the 
incorporation of environmental criteria in 
companies’ annual accounts. On this subject, 
the Commission has issued an important 
recommendation dated 30 May 2001, which 
‘recommends that the Member States:

1. Ensure that for accounting periods 
commencing within 12 months from the date 
of adoption of this recommendation and for 
all future accounting periods, companies 
covered by the fourth and seventh company 
law directives (Directives 78/660/EEC and 
83/349/EEC respectively) apply the 

Environmental law and the mercantile registry

49

provisions contained in the annex to this 
recommendation in the preparation of the 
annual and consolidated accounts and the 
annual report and consolidated annual 
report’.

So, the idea is for the company annual 
accounts and group consolidated accounts 
that are reported and made public pursuant 
to the provisions of directives four and seven 
in all States of the Union to include and give 
with all due transparency the quantification 
of and information on environmental 
expenses, environmental obligations and 
risks, and the related assets stemming from 
transactions and events that do or will 
probably affect the position and financial 
results of the company or group.

The recommendation clearly specifies the 
type of environmental information that is 
considered appropriate for inclusion in 
company and group accounts.

Furthermore, the recommendation is 
applicable not only to the companies to 
which directives four and seven refer, but also 
banks, financial institutions and insurance 
companies, since the financial implications 
of environmental questions are no different 
for these kinds of enterprises.

The Commission’s recommendation, to 
whose text we shall adhere in these lines, 
specifies what is to be understood by 
‘environmental expenditure’ and states what 
items are to be included and excluded from 
the concept. The recommendation moreover 
refers for these purposes to the definitions 
given out by Eurostat (the European 
Communities’ statistics office) in the 
implementation documents of Council 
Regulation (EC) No 58/97 of 20 December 
1996 concerning structural business statistics.

We need not go into a detailed review here of 
each item of environmental implications or 
environmental origin that must be included 
in the annual or consolidated accounts 
under the recommendation’s criteria, 
because they are discussed in full in the 
recommendation.

The Commission’s recommendation 
moreover specifies what accounting 
information of an environmental origin or 
implication must be included in company 
and consolidated annual reports, the balance 
sheet and the notes to the annual accounts. 
All those documents must be posted and 
disclosed in accordance with directives four 

and seven. Furthermore, the 
recommendation specifically provides that 
should the company have a separate 
environmental report containing detailed or 
additional environmental information of a 
quantitative or qualitative nature, the report 
posted with the annual accounts must refer 
explicitly to the said separate environmental 
report, and the company must also state 
whether the environmental report has been 
subjected to an outside verification 
procedure (the eco-audit we have spoken of 
before).

As for this aspect of verification and outside 
control, although the Commission’s 
recommendation does not hold forth on the 
subject, it would seem wise to regulate 
expressly that the mandatory environmental 
report to be attached to the annual accounts 
in certain cases must assess the extent of 
compliance with environmental accounting 
rules and, where applicable, compliance with 
the enterprise or company’s environmental 
programme. The environmental programme 
is one of the specifications that, under the 
Commission’s recommendation, must be 
included in the report of which the annual 
and consolidated accounts form a part.

(d) Emission rights reported by the 
commercial registry
The commercialisation of greenhouse gas 
emission rights is one of the most important 
measures for tackling the change in our 
climate. Emission right trading is a major 
factor that can help reduce the costs involved 
in upholding the commitments in the Kyoto 
Protocol, pursuant to which the European 
Community promised to reduce its 
greenhouse gas emissions by 8 % from 1990 
levels between 2008 and 2012.

Emission right trading consists in assigning 
companies quotas on their greenhouse gas 
emissions and allowing them to exchange 
their quotas with other companies.

The emission right trading mechanism 
enables some companies to go over their 
emissions quota if they can find another 
company that has emitted less gases than the 
maximum limit and is willing to hand over its 
quota surplus. The overall environmental 
result is the same as if both companies were 
using their own quotas, and both the buyer 
company and the seller company benefit 
from the flexibility the exchange system gives 
them, at no additional injury to the 
environment.

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Land and commerce registry as an instrument for sustainability

Obviously, the efficacy of a good 
environmental policy through the emission 
right trading system will depend heavily on 
the terms regulating the system and the 
strictness and control measures of the 
enforcement scheme. The goal of strict 
compliance and control is to boost 
confidence in the trading system and make it 
work efficiently to reach the desired 
environmental objectives.

In addition, in order for an emission right 
trading system to run smoothly, there has to 
be a good system of supervision, follow-ups 
and information. There must also be severe 
dissuasive penalties to convince companies 
that non-compliance is far more costly than 
compliance. These objectives — supervision, 
follow-ups and information — can be 
implemented through an effective 
instrument: a registry with legal effects to 
which emission rights and the transactions 
involving them have had access.

But, even more important than that function 
is the role a registry can play if it has legal 
effects. After all, emission rights are titles that 
will frequently be of great economic value, 
and at present there is no venue for 
disclosing who owns them. In other words, 
they are rights whose owner will remain 
secret to all the agents in the market unless a 
proper registry reporting system is arranged. 
A system to regulate how the trade in 
emission rights can gain access to a registry of 
substantive legal effects, built in the image of 
the experienced real estate registry systems 
and pursuant to the same principles.

Moreover, the project to put emission rights 
in circulation cannot conceivably have the 
slightest chance of success unless it is backed 
up and upheld by a good system of registry 
reporting that will make it possible to know 
for certain who the owner is and what, if any, 
burdens and limitations there are on the 
rights, through an easy querying procedure 
without the need for costly searches. There is 
no need to go on about the advantages a 
proper registration system has for achieving 
certainty in trade and reducing transaction 
costs, because that has been the subject of 
numerous expert studies.

The registry, where emission right trading is 
registered, would not have to be a specific 
registry whose sole object is emission rights. 
One of the already existing legal registries, 
working according to the thoroughly tested 
principles of registry reporting, could be 
used.

One registry suitable for these purposes is the 
one that already exists in Spanish law under 
the name of the chattel goods registry, 
created by the Sole Additional Provision of 
Royal Decree 1828/1999 of 3 December. The 
chattel goods registry has a section called the 
registrable chattel goods section, which 
would be an appropriate place for emission 
rights. This registry could trace conveyances 
of emission rights and offer a system for 
reporting all operations concerning emission 
rights, disseminated over a province-wide 
area (since chattel goods registries share 
their territory with provincial mercantile 
registries). The registry can also serve as a 
control tool to facilitate and help enforce a 
good system of penalties, so that non-
compliance will never be cheaper than 
compliance.

Naturally, all aspects involving emission 
rights’ access to the legal registry we are 
speaking of must be regulated in detail, 
especially their matriculation or first 
registration. The logical course of action 
would appear to be to use the administrative 
document conceding or defining the 
emission rights as the owner’s property, as the 
title of matriculation. Any subsequent 
conveyances of or encumbrances on the 
rights could be registered on the basis of the 
public or private titles specified by 
regulations.

Moreover, it would be best if there were a 
central European registry of emission rights, 
where all the information on record in the 
different registry districts can be centralised. 
A central registry of this description would 
have the double job of reporting and giving 
transcripts of the data on record in 
provincial, regional or national registries, 
plus serving as a control system to prevent 
the registration of the same right in more 
than one of the lesser registries. In Spain, 
both the mercantile registry and the chattel 
goods registry have already proven by 
experience that a central mercantile registry 
(to supervise the names of companies) and a 
central chattel goods registry (which prevents 
double matriculation) work very 
satisfactorily. At any rate, central registries 
and the different provincial, regional and 
national registries must be highly 
computerised so there will be no delays in 
transferring information and dispatching 
titles. With a system of registries headed by a 
central registry at the top of the ladder, we 
can enjoy the advantages of centralised 
information and the advantages of keeping 
offices conveniently handy for citizens.

International aspects of environmental information

51

7. International aspects of 

environmental information

José Siméon, Land registrar, Calpe

7.1. Environmental information and 
its community perspective

The Treaty establishing the European 
Community proclaims that environmental 
protection demands form part of the 
definition and performance of Community 
policies and actions, quite notwithstanding 
the fact that they are also envisaged as a 
specific Community policy in Articles 174 et 
seq.

A major part of environmental policy has to 
deal with proper information on the subject 
in general and with regard to the physical 
basis to which the environment pertains. In 
this respect, Council Directive 90/313/EEC 
discusses the principle of freedom of access 
to environmental information, and if 
environmental information is to be full, it 
must clearly define the lots or properties to 
which it pertains.

The importance of information for fully 
achieving a single market has been 
emphasised repeatedly by Community 
authorities. Especially important because of 
its special economic significance is the 
information administrations can provide by 
promoting the creation of European 
information networks to allow equal 
possibilities of access to information at the 
Community level for private persons and 
companies the length and breadth of the 
Union, which would make for lower 
information costs. These perspectives are 
applicable to environmental information as a 
kind of information fully within the 
Community’s sphere of competence.

At the same time, the environment is a 
constraint on proprietary rights. Although 
Community law does leave it to internal laws 
to regulate property (Treaty establishing the 
European Community, Article 295), it does 
so upon the common acknowledgement of a 
concept of property that emanates from the 
European Convention for the Protection of 
Human Rights and Fundamental Freedoms, 
the acquis communautaire and the 
constitutions of the Member States. That 
concept is based upon the acknowledgement 
of private property and the free 

transferability thereof, guarantee in case of 
condemnation and the possible existence of 
limitations on private property for reasons of 
public interest stemming from local laws or 
Community law. So, environmental 
protection can pertain to the concept of 
property, either through constraints that 
form a part of the basic laws governing urban 
or agricultural property, or through specific 
limitations. The limitations we are interested 
in, then, are those that touch upon the 
content of property, affecting its uses (e.g. 
zoning, protected areas), conferring certain 
rights (e.g. emission rights) or initiating or 
enforcing environmental correction 
measures.

Likewise, the land registry is a good 
instrument for cooperating with the 
Community or national administrations to 
ensure compliance with environmental rules, 
as in cases where environmental impact 
assessments must be accredited for 
registrable acts.

So then, the environment-linked limitations 
on property ownership to which we refer will 
normally have to do with property in the 
broad sense (lots, rivers, wetlands, etc.), but 
they will define rights and obligations that 
will delimit the contents of property 
ownership in each case.

As we have said, the concept of property 
common in EU countries acknowledges the 
existence of limitations for reasons of public 
interest. That has been so ever since the 
formation of the modern concept of property 
at the beginning of the last century, even 
despite civil codes and their absolute 
pronouncements on property. Such 
limitations have been recognised from the 
beginning and have become so much more 
complicated during the subsequent evolution 
of the right that they can be said no longer to 
limit, but to delimit, to form part of the very 
notion of property as a means of achieving 
certain ends that transcend the property 
owner. In the case of the environment, those 
ends are the preservation of the environment 
for the future and the achievement of 
sustainable development.

52

Land and commerce registry as an instrument for sustainability

Environmental information thus pertains to 
properties and delimits rights as a 
consequence of the exercise of Community 
policies.

This is also in line with the findings of the 
recent registrars’ congress, which discussed 
starting up a European network of registry 
information on properties.

The land registry is the institution in charge 
of reporting the extent of and limits on 
proprietary rights; it is an institution that, 
although under different organisational 
guises and with different legal effects, strives 
to ensure to third parties the identity of the 
titled owner of immovable property and the 
extent of his title, thus saving information 
costs and facilitating the circulation of 
immovable property and credit. That is the 
way the registry is set up in every country of 
the European Union.

In comparative European law, we can see that 
certain internal legislations are taking their 
first steps towards the idea of reporting 
environmental information through the land 
registry, either directly or through reference 
to other databases.

Furthermore, since environmental 
information is an issue encompassed by 
Community action, it should aspire to access 
at the Community-wide level.

The agreement between the Professional 
Association of Registrars of Spain and the 
European Environment Agency therefore 
aspires to craft a European network of 
environmental information in consonance 
with Council Directive 90/313/EEC 
referring to property and its owners, and 
therefore a network linked to the 
information provided by land registries at the 
European level, without affecting the 
declaration in Article 295 of the Treaty 
establishing the European Community.

7.2.

International aspects of the 
initiative

In the aforesaid context, the Professional 
Association of Registrars has informed 
various institutions and the persons 
responsible for the institution of the registry 
at the European Union level, with whom it 
has a particular relationship, about the 
initiative of the experts’ corner project with 
the European Environment Agency and has 
asked for their comments on the subject and 
promised to send them the final text on the 
outlooks for the possible creation of a 
European environmental information 
network.

Notification of this initiative has gone out to:

— the Cadastre, Registration and Public 

Property Administration of the Belgian 
Ministry of Finance;

— the Office of the Chairman of the Board 

of Directors of the Association of 
Registrars of Portugal;

— the Judge presiding over the Registry 
Court of Copenhagen, Denmark;
— the Munich Land Registry in Germany;
— the chief registrars in Apeldoorn, the 

Netherlands;

— the Chief Land Registrar for England 

and Wales;

— the Director-General of the Registry in 

Luxembourg;

— the Director-General of the Association 

of Registrars of France;

— the land registry in Dublin, Ireland;
— the registers of Scotland;
— the President of the Non-salaried 
Mortgage Union of Greece;

— the Cadastre and Registry of Lithuania;
— Sweden’s national land survey.

Several of these bodies have sent in their 
comments

Belgium’s Cadastre, Registration and Public 
Property Administration has pointed out the 
need to relate the aforesaid databases with 
the public law limitations that are within 
regional administrations’ sphere of 
competence and the limitations that refer 
exclusively to the private-law aspect (which is 
within the individual State’s sphere of 
competence). It stressed the need to 
strengthen registry information, on the 
assumption that reliable physical bases exist.

The Danish registry reported that Danish 
legislation calls for the registration of urban 
development plans, agricultural policy 
constraints and other matters with 
environmental connotations such as matters 
involving polluted land, conservation 
obligations, prohibited uses and corrective 
measures. The land registry for England and 
Wales referred to the initiative underway to 
create a national information service 
containing all the land data in the 
administration’s databases. The initiative is 
led by the land registry; the land registry is 
responsible for legal information referring to 

International aspects of environmental information

53

land and ought to be able to handle the 
giving of environmental information in 
future. The land registry of Scotland reports 
the same.

The Dutch land registry explained that 
environmental information is disclosed 
through a code, although to get more details 
one must inquire at the specific registry 
involved. The answer from the Cadastre and 
Registry of Lithuania informed us that 
Lithuanian legislation already calls for 
registries to report situations that directly 
impinge upon the environment, such as 
situations concerning protected areas or 
natural parks or situations with links to urban 
planning.

So, the information we received shows that 
there are initiatives aimed at reporting 
environmental limitations at the land 
registry, either directly or through related 
means, inasmuch as this sort of legal 
limitation really should take the form of 

trans-European information, since it results 
from Community-wide policies.

7.3. Future outlooks

The foregoing comments suggest a line of 
action for the future:

— sharing of the final experts’ corner text 

and papers with registry officials 
throughout the European Union and 
countries desirous of joining the Union;

— an encounter (in Brussels, perhaps) with 

countries interested in joining the 
experiment of creating a European 
network of land-related environmental 
information;

— creation of a European environmental 

information network with the 
information provided by the competent 
official Community levels and official 
national levels, which could be 
channelled through the Office of the 
National Professional Association of 
Registrars in Brussels.

54

Land and commerce registry as an instrument for sustainability

8. Expert’s corner findings and 

action

Mariano Va Aguaviva, Land Registrar

8.1. Findings

The environment, whose primary foundation 
is the principle of prevention followed 
subsidiarily by punishment, must be 
protected by law. The land registry is an 
institution whose object is to ensure the 
security of legal traffic in real estate by means 
of reporting with full legal effects and is 
therefore an especially useful instrument for 
protecting the environment, for prevention 
requires information, and compliance with 
penalties and reparatory measures will be 
guaranteed by reporting in the registry. It is 
also very important for environmental 
limitations on land to be reported in the 
registry, because that will reinforce the 
registry’s efficacy in achieving security in 
legal traffic. Fuller information increases 
security, decreases transaction costs and 
reduces market asymmetry.

The environment considers land a natural 
resource, and that consideration has an 
effect on the concept of proprietary rights. 
Any alteration of proprietary faculties must 
be recorded in the land registry. Normally, 
the registry (its books and databases) will 
restrict themselves to environmental 
information that involves concrete, specific 
pieces of property.

But, there is also another type of 
environmental information that must be 
known: (a) information about certain spatial 
areas and (b) information stemming from 
rules and plans that result directly in 
limitations without the need for registration. 
The registry office (public office where the 
land registry is located) ought to give 
information on both kinds, because it has the 
organisation, means, proximity to the citizen, 
etc., and can contribute effectively towards 
facilitating the right to access to that 
information in accordance with Directive 90/
313/EEC of 7 June 1990. To put it another 
way, the registry office could also be an 
environmental information office using 
georeferenced image bases and connections 
to the databases of other institutions 
organised on a territorial basis.

The mercantile registry or registry of 
commerce is an especially appropriate place 
for recording rules, limitations, 
administrative and judicial action and other 
action of an environmental nature affecting 
companies, because of the magnifying effect 
of the disclosure it provides.

It is considered a wise idea for a legal registry 
of chattel goods to report the trade in 
emission rights.

8.2. Action to take for the work to 

continue

The problem has been pinpointed and 
solutions have been proposed. Now action 
must be taken to achieve the sought-after 
goal. Section 5 of the paper discusses the 
action to be undertaken immediately. Here, 
we shall propose the necessary means for 
providing continuity and expanding the 
realm of application:

Creation and outfitting of an environmental 
registry secretariat for the purpose of:

— disseminating the theoretical and 
practical work done. So that when 
information and documentation on the 
subject are sent in to the secretariat, they 
will immediately be sent out from there 
to all other interested parties;

— centralising the relations of registry 
institutions with other institutions 
organised on a territorial basis;

— coordinating actions with respect to 

universities, lectures, classes, seminars 
and other academic activities. Also, 
designing a legal journal on the registry 
and the environment.

8.2.1. There are various levels of action
— Autonomous Community of Catalonia
— Spain
— EU and adjoining countries
— international in general

In order to implement environmental 
mainstreaming, the informational sphere 

Expert’s corner findings and action

55

must be expanded from the strictly legal to 
include other information having 
environmental repercussions. The secretariat 
will therefore maintain a relationship with 
the Environmental Impact Association and 
all other associations decided on.

The Office of the Autonomic President of the 
Official Association of Land Registrars of 
Catalonia in Barcelona is hereby proposed as 
provisional headquarters until definitive 
headquarters can be chosen by the interested 
parties.

56

Land and commerce registry as an instrument for sustainability

9. Glossary of terms

1. Action to repeal claim for easement
Measure intended to protect the holder of 
title from easements on his or her property to 
which he or she has not consented. Based 
principally on the presumption in favour of 
the freedom of property encumbrance.

2. Public action
Legal mode of exercising rights 
acknowledged as belonging to a collective.

3. Examined activities
Those activities that are subjected to a special 
proceeding of examination for due legal 
form, in view of their capacity for generating 
nuisances, health hazards, noxiousness or 
danger.

4. Pollutants
The substances responsible for the process of 
environmental pollution. Pollutants are 
traditionally classified into three groups: 
wastes, micro-organisms and energies.

5. Caveat
Entry made in the registry’s books, mainly 
provisional in nature and generally transitory, 
whose object is: (i) to ensure the results of a 
trial; (ii) to guarantee a perfect but 
unconsummated right; (iii) to prepare a final 
entry.

6. Authorisation
Administrative permission to perform an 
activity.

7. Precautionary
Measure or rule for preventing the 
achievement of a given end or guarding 
against that which might hamper the 
achievement of a given end.

8. Registry certificate
Public document issued at the applicant’s 
request or the court’s order, wherein the 
registrar, on his own responsibility and with 
the power to attest documents vested in his 
office, records the contents of the registry.

9. Environmental pollution
Process whereby certain substances and 
forms of energy alter the environment in a 
fashion different from that of the natural 
process.

10. Report
Notification of the commission of some 
illegal action, given to the competent 
authorities.

11. Environmental law
Set of rules pertaining to the environment.

12. Community, original or primary law
The law made up of the rules in the Treaties 
founding the European Community and the 
Treaties revising and enlarging the European 
Community. Its main object is to proclaim 
the communities’ governing principles and 
to establish the structure of the European 
Community’s foundation, powers and checks.

13. Derived Community law
The law made up of the rules emanating 
from the Community bodies themselves in 
their unilateral exercise of the powers 
attributed to them by treaty. Derived 
Community law is subordinate to primary 
law. It mainly comprises directives, 
regulations, decisions, recommendations and 
opinions.

14. Real right over immovable property
Right pertaining to a property or to another 
right in immovable property belonging to 
another person, granting the holder of the 
right certain faculties over the said properties 
or rights to the detriment of their own 
holders. Sometimes, the real right over 
immovable property determines the scope of 
use permitted to the property or other right, 
while sometimes it may serve as a guarantee 
of compliance with certain obligations.

15. Environmental audit or eco-audit
Management tool comprising a systematic, 
documented, periodic and objective 
evaluation of the performance of the 
organisation, management system and 
processes designed to protect the 
environment.

16. Proceeding
Procedure wherein someone’s actions are 
judged.

17. Guarantee
Means of legal protection against some risk 
or need.

Glossary of terms

57

18. Public environmental management
Because it is a public asset, the environment 
must be safeguarded and protected by the 
public authorities, who implement 
environmental management on the basis of 
legislation and action.

19. Illicit
Not allowed by law.

20. Filing
The beginning of a proceeding or trial.

21. Indemnity
Recompense or compensation for damage.

22. Violation
The breaking of a legal rule.

23. Registry entry or registration
Definitive main entry of existence made in 
the land registry’s entry books, to record in 
full the constitution, amendment or transfer 
of a right in immovable property.

24. Environmental legislation
Pillar of public environmental management 
consisting in the creation of a system of 
environmental protection rules that 
establishes certain objectives to be met and a 
series of measures for meeting them.

25. Licence
Administrative authorisation to do 
something.

26. Limitations and prohibitions on the 
proprietary right
Restrictions on the faculties making up or 
comprising the proprietary right, which 
sometimes affect the use and enjoyment of 
property and sometimes affect the use of 
property or even the free disposability of 
property. They may restrict the breadth of 
the right, or they may impede any exercise of 
the right. Generally, they are applied to 
protect an interest superior to the individual 
interest. Limitations, unlike real rights, do 
not give any corresponding right to another 
person.

27. Environment
Set of conditions that constitute the 
framework in which the existence of a living 
being or community takes place.

28. Simple information note
Means of formal reporting handled 
professionally, for information only and 

lacking in attesting qualities, about the 
contents of registry entries, and whereby a 
person expressly, tacitly or allegedly proving a 
legitimate interest can ascertain the 
economic particulars of registered assets, 
their owners, the nature of their owners’ title 
and any prohibitions or restrictions on the 
owners or the registered rights.

29. Policing
Orderly state emanating from observance of 
legal rules. Activity of watching for 
observance of the said rules.

30. Prevention
The taking of measures to avoid harm.

31. Reporting
Set of means used to divulge or spread the 
news or knowledge of legal situations of 
import.

32. Registry reporting
The ongoing, organised exteriorisation of 
legal situations of real importance to 
produce general cognoscibility erga omnes, 
with certain legal effects on the reported 
situation.

33. Neighbourly relations
Body of rules that attempts to regulate the 
relations among the owners of adjoining 
properties through limitations on the 
exercise of proprietary rights, such that they 
can use their different proprietary rights 
compatibly.

34. Decision
Decree or sentence by the administrative or 
judicial authority.

35. Penalty
Punishment established by law for a person 
who violates the law.

36. Easement
Real right on immovable property in the 
benefit of another immovable property 
belonging to another person and obliging 
the owner of the property under easement to 
‘do something’, ‘let something be done’ or 
‘not do something’. Easements can also be 
established to benefit a person.

37. Subsidiary liability
A liability that is in addition to a principle 
liability.

58

Land and commerce registry as an instrument for sustainability

Glossary of terms

59

European Environment Agency

Land and commerce registry as an instrument for sustainability

2002 – 60 pp. – 21 x 29.7 cm 

ISBN 92-9167-500-8