Horizontal property by phases: the Registry must register independent building rights

Key data

A developer that builds a phased development no longer needs to wait to construct in order to sell with full legal certainty. The Resolution of the General Directorate of Legal Security and Public Faith (DGSJFP) of June 15, 2026, published in the BOE on October 22, 2026, resolves the appeal filed by a notary against the negative qualification by the property registrar of Almoradí, who had suspended the registration of a single horizontal property deed by phases.

The resolution grants the appeal and sets binding criteria: this type of deed is valid and registrable under article 26 of the TRLSRU, and registrars cannot suspend its registration merely because construction has not yet been executed.

What does this regulation establish?

The deed subject to the appeal regulated a single horizontal property by phases on a plot, creating 16 independent real building rights. Each of these rights constitutes what the resolution calls a "potential plot": it does not yet exist physically, but is legally defined with registry effects.

The mechanism works as follows:

• A deed is executed that specifies the ius aedificandi (right to build) of each phase, with real effects against third parties from its registration.
• Each "potential plot" becomes a full registered plot at the moment its owner declares the new construction and establishes the horizontal property of that specific phase.
• Each owner acts in a autonomous and independent manner: they do not need the concurrence or consent of the other owners of the other phases to declare their new construction or establish their horizontal property.
• Registration produces erga omnes effects from the moment of registration, protecting the buyer of the right against charges or subsequent transfers of the plot.

The DGSJFP concludes that the Almoradí registrar erred in suspending registration: the mechanism is perfectly valid under article 26 of the TRLSRU and there is no registry obstacle that prevents it.

Economic and operational impact

This resolution has direct consequences on the financing and marketing of phased developments:

• Advance sale with legal certainty: The developer can transfer registered building rights before starting construction. The buyer acquires a real right enforceable against third parties, which facilitates the buyer's bank financing and reduces perceived risk.
• Autonomy by phase: Each holder of a building right can develop their phase without depending on the progress of the rest. This eliminates frequent operational blockages in joint promotions.
• Reduction of registry litigation: By establishing clear doctrine, negative qualifications by registrars for similar deeds are reduced, which speeds up timelines and notarial and registry costs for this type of transaction.
• Greater appeal for investors: Prior registration of the building right with erga omnes effectiveness makes these assets more bankable and transferable in the secondary market.

Who does it affect?

• Real estate developers that develop urbanizations, residential complexes or mixed developments by phases: can structure the sale of rights before building with full registry coverage.
• Home buyers in phased urbanizations: acquire greater legal certainty when buying a registered right, not a mere contractual promise.
• Notaries: can execute this type of deed with express support from the DGSJFP, reducing the risk of subsequent negative qualification.
• Property registrars: are bound by the doctrine of the resolution and cannot suspend registration of deeds that follow this scheme.
• Financial entities that finance phased developments: prior registration of the right improves available real guarantees.
• Legal advisors and real estate lawyers that structure land and development transactions.

Practical example

A developer acquires a plot in Alicante with a license to build 16 single-family homes in 4 phases of 4 units each. Before this resolution, if the registrar negatively qualified the horizontal property deed by phases —as happened in Almoradí—, the developer could not register the building rights and, therefore, could not sell with full registry guarantees before building.

With the doctrine set by the DGSJFP, the developer can now:

1. Execute a single horizontal property deed by phases that specifies the 16 independent real building rights.
2. Register those rights in the Property Registry with erga omnes effectiveness.
3. Sell each building right to a different buyer before starting work, with full registry certainty for the acquirer.
4. Each buyer, when they wish, declares their new construction and establishes the horizontal property of their unit in an autonomous manner, without needing the rest.

The result: the developer finances construction with advance sales and buyers have a registered real right that protects them against any charge or subsequent transfer of the plot.

What should companies do now?

1. Review your phased developments in progress: If you have urbanizations or complexes in development by phases and have not registered the building rights, consider doing so now to strengthen the legal certainty of advance sales.
2. Consult with your notary about the deed structure: The deed must specify the ius aedificandi of each phase with the requirements of article 26 of the TRLSRU for registration to be valid.
3. Inform your buyers of the change: Buyers of building rights in phased urbanizations now have greater registry protection. It is a relevant commercial and trust argument.
4. If the registrar suspends registration, appeal: The doctrine of the DGSJFP is clear. A negative qualification for deeds that follow this scheme is appealable with solid grounds.
5. Review the financing of the phases: With registered rights, negotiate with your bank the financing conditions: the real guarantee improves and can translate into better credit terms.

Official source

Consult complete regulation in official source

Notice: This article is for informational purposes only and does not constitute legal advice. For specific decisions, consult a qualified professional. Source: https://www.boe.es/diario_boe/txt.php?id=BOE-A-2026-22017