GUATEMALA

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CREATION OF THE CADASTRAL INFORMATION REGISTRY

Contributed by
José Guillermo Bonilla
BONILLA, MONTANO, TORIELLO & BARRIOS

A Cadastral Information Registry was recently created by Congress through the enactment of Decree number 41-2005, about to come into force at the end of this month. This registration office implicates the creation of a new governmental entity with its own legal capacity, autonomy and patrimony, which functions must be understood in coordination with those of the already existing Real Estate Property Registry.

The main object pursued by this new office is the establishment and maintenance of the national cadastre –embracing all the country’s real property- as well as to keep all the pertaining information up-dated. In pursuing such a goal, Congress Decree 41-2005 structures the Registry’s organization as follows:

-         A Registry’s Board of Directors;

-         A National Executive Office; and

-         Municipal Offices on Cadastral Information Registry.

The Board of Directors is the branch directing the cadastral policy, the Registry’s

functionality and the coordination with all governmental offices and social organizations linked to the process of establishing, maintaining and up-dating the cadastral information. This Board is presided by the Ministry of Agriculture.

The National Executive Office is managed by a person appointed by the Board of Directors. This manager is in charge of executing and put into practice all orders and resolutions dictated by the Board of Directors. The manager is the person holding the legal representation of the Cadastral Information Registry.

The Municipal Offices are headed by an agent also appointed by the Board of Directors and proposed by the National Executive Office’s manager. This agent is in charge of carrying out all the technical, legal and administrative operations within the corresponding municipal district.

Congress Decree 41-2005 also foresees an inter-institutional coordination between the Cadastral Information Registry and those governmental offices and entities somehow related to Real Estate issues, such as the Real Estate Property Registry, the municipalities, the National Geographic Institute, among others. The coordination relationship between the new Registry and the municipalities posed by this new regulation is probably the one most questioned, since it may be considered not in absolute consistency with the constitutional principle of the autonomy granted to the municipalities.

 A new procedure in order to obtain legal ownership on lands is established by the Decree, as long as such lands are held under legal possession rights –not ownership rights- and that consequently do not have a registration with the Real Estate Property Registry, as so determined by the Cadastral Information Registry after the completion of the relevant legal analysis. This procedure grants the Cadastral Information Registry the authority to order, once the requirements described in the same proceeding are met, the registration of the possession rights with the Real Estate Property Registry, in order for them to turn into ownership rights provided the legal term has elapsed. This proceeding’s implementation may be deemed as a substitution of the jurisdictional function given to courts, which have been so far the ones entitled to dictate registration orders, according to the legislation currently in force.

Additionally, Congress Decree 41-2005 imposes the duty on the Supreme Court to create the so called “Agrarian Courts” and to present to Congress, as soon as possible, a bill containing the substantive and procedural regulations applicable to such courts. With respect to this disposition, it is uncertain to determine at this point how mandatory this order may be to the Supreme Court, especially taking into consideration the constitutional principle of independence of powers.

Finally, the Decree mentions the further creation of a law regulating the tenancy on lands as an extremely closed regulation body necessary to develop and complete the objectives sought by it. It can be foreseen the relevant impact this Decree and all other laws and regulations associated with it will have on the local legal and business community, as real estate property matters have traditionally been considered quiet sensitive legal issues in the country.

For further information on this topic, please contact José Guillermo Bonilla Juárez at BONILLA, MONTANO, TORIELLO & BARRIOS (DESPACHO DE ABOGADOS) Pbx: 502-2334-0704; Fax:502-2332-2361 or E-mail:jgbonilla@bonilla.com.gt.