LAND sURVEYORs As EXPERT WITNEssEs IN REAL estate litigation matters in spain izvedeniška dejavnost na področju nepremičnin v Španiji Natalia Garrido-Villén, Alberto Antón-Merino, José Luis Berné Valero, Carmen Femenia Ribera UDk: 349.4 : 528(460) abstract This article describes expert opinion and expert reports commonly requested by courts and lawyers in those technical disciplines related to real estate, within the framework of the current Spanish legislation. As established in Spanish Civil Code Article 348 "property means the right to possess, enjoy and dispose of anything of value with no limitations other than those established by law. In addition, the owner is entitled to claim property ownership as its holder and its possessor". This regulation has resulted in many litigation proceedings in Spain. Performance appraisal reports can be of aid to non-judicial experts and lawyers in relation to technical issues and can at times be decisive. Article classification according to cOBIss: 1.04 izvleček V članku predstavljamo delo izvedencev in najpogostejše primere izdelave izvedeniških poročil, ki jih v skladu s sedanjo špansko zakonodajo zahtevajo sodišča in odvetniki od tehnične discipline, povezane z nepremičninami. Po določbi 348. člena španskega državljanskega zakonika je »lastnina pravica do neomejenega uživanja in upravljanja stvari, razen v primerih, ki jih določa zakon. Poleg tega ima lastnik pravico, da zahteva stvar od imetnika oziroma nosilca.« Posledica tega pravila so številni pravni spori v Španiji. Poročila o ocenjevanju uspešnosti na tem področju so lahko v pomoč izvensodnim strokovnjakom in odvetnikom v zvezi s tehničnimi vprašanji in so včasih celo odločilnega pomena. KEY WORDS expert activity, real estate, expert reports, surveying. KLJUČNE BESEDE izvedeniška dejavnost, nepremičnine, izvedeniška poročila, geodetske meritve fN S •v o su to 1 INTRODUCTION Due to a number of reasons, which will be further described in the present article, many conflicts related to real estate can be solved using topographical or geodesic techniques. Judges may require expert evidence, i.e. an expert report elaborated by an expert on the subject. Evidence is the proof of the existence of a fact, or the truth of a statement, aimed at attaining the judge's psychological conviction regarding specific procedural data (Guasp, 1990). Expert evidence can be defined as a means of indirect evidence of a scientific nature which is intended to enable the judge, who is not familiar with certain fields of human knowledge, to value and appreciate technical facts which have been brought into the legal process by other means. In this way, the judge can be aware of their scientific, artistic or technical significance, provided that such special knowledge be useful, helpful or appropriate for the verification of any disputed fact in the trial (Sierra, 2000). Expert evidence is an essential phase of the proceedings by which the court must be convinced of the veracity of the allegations expressed by the parties in the proceedings (Cortés et al.,1996). First of all, it should be noted that acting as an expert is incompatible with the status of judge in the same trial and with the position of party. The expert is thus a third party or outside person with expertise, with or without a professional degree, and who brings his knowledge to the proceedings. The expert is brought to the proceedings exclusively by virtue of his artistic, scientific or technical knowledge, regardless of the way in which his knowledge was acquired, or of being in possession of an official degree, although the law logically prefers graduates (article 340.1 Code of Civil Proceeding, hereinafter LEC). There are as many experts as careers, excluding the legal career. The expert is, in fact, the person who, not being a party, issues statements about data which had already acquired a procedural nature during the observation period. These two circumstances distinguish expert evidence from confession or interrogation on the parties' part, in accordance with the terminology used by the existing Procedural and Testimony Evidence Law (Garciandía, 1999). The main purpose of this paper is to gather information about expert activities on real estate in Spain. The applicable legislation will be considered and some real cases will be presented as an illust6ration. 2 applicable legislation The basis for the intervention of experts in the proceedings is the need for technical expertise required by judges to carry out their duties; this need specifies the function and purpose of the expert's involvement in the proceedings, articulated through expert evidence (Garciandía, 1999). In this sense, expert evidence is considered as a means of evidence, both in the Civil Proceeding Act Law 1881 and in the current Procedural Civil Law (Articles 578.5 and 610 to 632 and 299.4 and 335 to 352, respectively). 2.1 Provision of Expert Evidence Litigants can have their own expert or experts if necessary or convenient to defend their rights. The general principle is that litigants must include the expert opinion in the claim or in the defendant's plea (Montero et al., 2000). This obligation shall not arise for the plaintiff if it is proven that he has not been allowed for the purpose of defending his rights. As for the defendant, he shall not enclose the expert opinion if he proves that he is unable to request or obtain it | ^ within the period for reply in writing; otherwise, the defendant shall have the same obligations ^ as the plaintiff. | I 5 Expert evidence shall be given in writing, including all other documents, instruments or materials, | g unless this is not possible, in which case the evidence shall include the necessary indications. f ;k I ^ Should the parties be unable to provide opinions given by the experts appointed by them, they shall provide the ones that they wish to be taken into account. I -S" In the relevant stage of the proceedings, the parties can request the experts to appear in court to explain or to provide their opinions and to answer questions, objections or proposals for correction. Under exceptional circumstances expert opinions are provided on the basis of court proceedings following the lawsuit. This happens when the development of the trial shows the need to provide such advice due to the allegations made by the defendant or additional arguments. If the Court deems it necessary, such a claim shall be authorised. In cases of free legal aid and if so requested, the parties may request the Court to appoint the experts, if deemed necessary for their claims. The Court shall do so if deemed appropriate and useful. This opinion shall be at the expense of the requesting party (Sierra, 2000). 2.2 The two types of expert evidence The Civil Proceeding Act in force articulates a dual system for the introduction of expert evidence in civil proceedings (art. 335). Firstly, the legislation allows the parties to provide, early in the proceedings, the opinions of the experts appointed by them (art. 336). Secondly, it allows for the possibility of the judge's appointing an expert who shall issue his relevant opinion (art. 339). These two forms of expert evidence are compatible with each other. Art. 335 LEC establishes that the parties may bring to the trial the opinion of an expert who possesses the necessary expertise; the parties can also request an opinion of an expert appointed by the judge, when the law contemplates it. Such cases are envisaged by Art. 339 LEC, which allows the parties to seek court-appointed experts when provision of expert evidence is deemed suitable for their best interest. Consequently it could be understood that the law allows requesting expert appointment s èî by the court, even if an opinion on the same question has been previously provided (Font, 2000). Î ^ 2.2.1 Opinion provided by the parties S I js This modality strengthens the role of parties in the evidentiary phase, leaving in their hands Si s the appreciation of the need for technical knowledge so that the judge can adequately assess the relevant facts in the lawsuit. Consequently, when the plaintiff and the defendant deem it appropriate to argue their claims, they shall be able to extra-procedurally commission expert opinions to be valued as expert evidence in the trial (González and Iglesias, 2000). fN SS Appointment of experts E^ f When the parties provide expert opinions at the beginning of the trial, the appointment of - ^ experts is a private extra-procedural activity. Thus it is of no legal interest as it is the parties who | | must find the expert who has, in their view, the suitable knowledge to clarify the facts. The law t requires that these experts have professional degrees or specific knowledge in the field under <3 consideration. Paragraph 1 of Art. 335 establishes that the parties may bring to the proceedings to ? the opinions of the experts who have relevant knowledge (González and Iglesias, 2000). Expert opinion submission The parties will submit the expert opinions at different stages of the process depending on the type of proceeding and its phases. In the case of ordinary proceedings, the expert opinion must be submitted with the lawsuit or the defendant plea, (Art. 265.1.4 and 336.1 ° LEC). In the case of oral proceedings, the expert opinion must be submitted with the lawsuit or at the hearing (Articles 265.4 and 336.1 LEC). That is, the plaintiff shall provide opinions that relate to events alleged in its lawsuit and the defendant shall provide opinions that relate to events which relate to allegations in the lawsuit and in the defendant's plea. In those cases in which the parties are unable to provide expert opinion in the lawsuit or the defendant's plea, the litigants are required to express in writing any opinion which should be used in their defence in the trial and submit them for transferral to the other party, as soon as possible, and in any case before the start of the pre-trial hearing of the ordinary proceeding or the hearing of oral proceedings in accordance with Art.337.1 LEC. Form and contents of the experts report The legislation obviously does not regulate the form and contents of an expert's report provided | I by a party. That is, experts are allowed to submit their opinions together with any instrument s5 that may enable the judge to acquire better understanding of the issues described in the technical | report. § § However, the report should include a detailed description of the object of expertise, a list of | the technical methodologies used by the expert and results, as well as the conclusions reached. | I 2.2.2 Expert evidence performed by a court-appointed expert | I This type of expert evidence is conducted by an expert appointed by the judge. It is an alternative | way to that discussed in the previous section and although in theory it should not be so, in practice 1 this method usually provides greater independence and objectivity to the process. | j Proposal and admissibility of expert evidence | I The presence of court-appointed experts proceeds in the following cases according to Art. 339 | TFC- B-n LEC: I 1 5 Firstly, if either party is entitled to legal aid, it will suffice to ask for judicial appointment of an | Ci expert, as is established in the Legal Aid Act (Article 339.1 LEC). | Secondly, even if they are not entitled to legal aid, any party can ask for judicial appointment | ^ of an expert at various stages of the process: | g - In the lawsuit or the defendant's plea in the case of an ordinary proceeding. In oral proceedings f in the lawsuit or in the hearing, as long as the litigants deem it suitable or necessary to their 3 presence of the Clerk of Court and thereafter the remaining appointments shall be made following $ I this list serially (Art. 341.1 LEC). Thirdly, the last system for appointment of an expert is the parties' consent in those cases where, because of the uniqueness of the subject matter expertise, there is only one knowledgeable person in the field. That person shall be appointed only when the parties jointly agree (Article 341.2 LEC). Expert appeal. Acceptance of the office and appointment In accordance with Art. 342 LEC, the judge shall communicate the appointment to an expert witness within five days following the appointment, whatever the appointment procedures may have been. The judge may require the expert to state whether he accepts the office or not within five days. Once the appeal is made, the expert may take several courses of action: Firstly, he may accept the appointment. This is the normal and usual attitude, as the expert has requested to be included in the corresponding list. Once the appointment is accepted and in accordance with Art. 342.1 LEC, the expert shall be appointed and swear under oath or promise to tell the truth, acting as objectively as possible, without favouring or harming either party, and being aware of the criminal sanctions in which he may incur if he breaches his duty as an expert witness (Article 355.2 LEC). In addition, at this time experts shall apply for funding. In this act, and though not specified in the law, the subject matter of expert opinion evidence and the submission deadline must be specified (Font, 2000). Secondly, the expert witness may decline due to any cause of abstention envisaged by the law, as Art. 105 LEC forces him, in this case, not to accept the office. In this case, the expert shall be replaced by a substitute in accordance with the replacement procedure specified in Art. 342.2 LEC, which is discussed below. Thirdly and finally, the designated expert may not accept the appointment, and must provide a justified cause which is regarded as sufficient by the judge (Art. 342.2 LEC). That is, the expert's free non-acceptance is not envisaged, but rather it is subject to the submission of a sufficient reason to the judge. If the court considers the cause provided to be sufficient, the court shall proceed to the expert's replacement, always by the following person in the court list, designating the next person in the list and so on, until the appointment can be made (Article 342.2 LEC). fN Report drafting Prior to the issuing of the report, the judge-appointed expert shall, when necessary during his investigation, perform the actions required by the nature and characteristics of the object of | ^ expertise. is ^ The law says that the expert actions shall be performed, if possible, in the court head office. f I ^ However, often these actions have to be performed outside the local courthouse, as in the case 3 and go so far as to disturb public order, shall be arrested and brought to whatever court must ^ I hear the case (Garciandia, 1999). 3 LAND sURVEYORs As EXPERT WITNEssEs IN REAL EsTATE LITIGATION Once the legislation on expert witnesses has been reviewed, in this section the main geodetic and cartographic works performed by land surveyor expert witnesses are described. 3.1 Deed of sale The deed of sale is a document in which a change in ownership of a certain real estate is recorded and authorised by a notary public, who will sign with the grantor or grantors, besides giving faith about legal capacity of the content and the date on which it took place, as shown in Figure 1. There are many court cases in which the subject of dispute goes through determining real estate ownership. 3.2 Historical land Registry Records When the ownership is not completely defined in the deed of sale it is very useful to study the history of a property registration at the Land Registry. According to Art. 605 of Civil Code "The Land Registry includes the registration or annotation of acts, deeds and contracts concerning ownership and other real rights over real estate". In this way there is a historical record of the real estate owners and divisions, as shown in Figure 1. Figure1: Land Registry record of a rural property in the municipality of Godelleta (Valencia - Spain) 3.3 Field measurements taken with topographic instruments In most cases, the expert has to take field data to compare his measurements with other type of graphical documents. Field data are recorded with topographic or geodetic instruments such as total station or GNSS equipment depending on location. Figure 2 shows the taking of data of a property boundary by means of GNSS techniques. fN is J" TS o to Figure 2: Field measurements of a fenced property in San Agustin (Teruel - Spain) taken with topographic instruments Figure 3: Current Cadastral Cartography of the municipality of Moixent (Valencia - Spain) 3.4 cadastral cartography Article 1 of the Spanish law 48/2002, of December 23rd, of Real Estate Cadastre (http://www. catastro.meh.es) says: "Real Estate Cadastre is an administrative registry of the Economy and Treasury Department in which all rural, urban and special property goods are described. It is regulated by the Real Estate Cadastre Act. The inscription in this registry is mandatory and free, unlike the Land Registry" (Berné et al, 2008). For land surveyors, the Real Estate Cadastre is the only complete and spatially continuous cartography of Spain that includes property boundaries. Cadastral cartography is available in digital format through the Internet (Figure 3). However, as the primary objective of the Spanish Cadastre is tax collection, it is highly inaccurate, which together with the fact it has no connection with the Land Registry creates numerous problems. 3.5 Historical cadastral Map fN S o Figure 4: Old cadastral map, year 1928. Municipality of Alborge (Zaragoza - Spain) Sometimes it is difficult to determine the property lines and boundaries as well as other relevant details of a real state property only from the Land Registry and current Cadastral data. Then, the land surveyor can consult the old cadastral maps that are kept in the archives of the Cadastre, copies of which can also be bought in paper format. See an illustration in Figure 4. 3.6 Historical Aerial Photography Similarly, to investigate about possible changes in the property lines of a real estate property over time old aerial photographs can be of great help to determine property lines prior to the boundary dispute. In Spain, historical aerial photographs of US Photogrammetric Flight 1956'are available from the IGN (National Geographic Institute). One of the photograms is shown in Figure 5. A cooperation agreement between the United States and Spain signed in 1953, allowed the U.S. Air Force to photograph in detail the Spanish territory. The flight took place between 1956 and 1957.These are the first aerial photographs available across the country, scale=1:33,000, taken at 5,000 meters above the ground, with a metric camera and 23x23 acetate negative, equivalent to about 42 square kilometers, in photograms of about six kilometers per side. Figure 5: Historical aerial photography. US Flight 1956 of the area of Ontinyent (Valencia - Spain) 3.7 Physical evidence on the ground As discussed in section 2.2.2 about report drafting, for expert evidence the land surveyor has to take measurements of the existing in-site boundaries and verify the state of boundary markers fN is J" o to that may help determine property limits. One example is setting boundary lines between municipalities, which generates numerous legal problems in Spain.. 3.8 Testimony of elderly people In cases where the property subject of expertise has changed substantially over time, besides registration records, historical cadastral cartography and aerial photographs, the testimony of the elderly people can be of aid in identifying changes in property boundaries. 3.9 Matching project drawings with physical data When a project is materialized on the ground, the final result may present differences with the original drafting and this leads to future legal disputes. In such cases an expert report is necessary to adjust the original project, whether expropriation, urbanization, etc.., with the current state of the terrain. Figure 7 shows an expropriation map that was not correctly materialized on the ground and resulted in several legal disputes. Figure 7: Expropriation map for the construction of a road in Castellón de la Plana (Spain) 4 MOST COMMON CASES IN REAL ESTATE SURVEYING fN s o su to In this section we shall briefly describe the most common cases which may require expert testimony of land surveyors whose skills fall within the scope of real estate surveying. There are many sources of information, which obviously must be studied separately and thoroughly. However, in most expert reports, the key to reach a conclusion is obtained by establishing the geographical relations between the various sources, especially cartographic sources: on-site measurements, cadastral mapping, aerial orthophotography, urban planning information, etc... This process is usually performed by means of a CAD or GIS software tool. 4.1 Boundary survey and setting Landmark setting is the formal act of distinguishing the boundaries of a property. According to Art.385, 386 and 387 of the Spanish Civil Code, the owner is entitled to delimit his property, citing the owners of the neighbouring properties. The same right shall correspond to those who have real rights. The boundary shall be in accordance with the owners' deeds, and, in the absence of deeds, with what proves ownership. Should the deeds not determine the boundary or area belonging to each owner, and the matter cannot be resolved by means of the possession or other evidence, the landmark setting shall be performed by distributing the land which is subject to dispute in equal shares. Should the deeds for the surrounding area cover a greater or lesser area than that comprised by the entirety of the land, the increase or decrease shall be proportionally apportioned (Sierra, 2000). According to Art. 388 of the Civil Code, the owner can place boundary markers such as fences, walls, ditches and so on, without prejudice to the easements established therein (Sierra, 2000). Demarcation is used to physically determine the boundaries of the property. It follows and is a consequence of land partition. Data sources are shown in Table 1 in order of importance. 4.2 Plot measurement is 1 In some cases, the object of the dispute is not the boundaries of the property, but the surface | area or the shape of the plot (such as setbacks of buildings or existing fences). Data sources 1 are shown in Table 1. | § S3 4.3 Identification of the actual property lines of a real estate | I This refers to the identification of a particular property of which only old Land Registry | information is available but not its mapping. In these cases, the sources to consider are shown | in Table 1 in order of importance. | 55 I ^ 4.4 Double registrations in Land Registry A double registration takes place when a single property is registered in two different and mutually independent folios in the Land Registry. This phenomenon also takes place when two properties overlap or one of them is included in a larger one. This problem arises mainly because historically register descriptions did not include mapping information and it was not necessary to indicate their correspondence with the cadastral numbering. The geographical descriptions to locate the properties were based only on the H ï^ 1 indications of the neighbours and, occasionally on some geographical feature such as a road, a | ^ ^ S ravine, etc. Double registrations in the Land Registry were common. Nowadays the problem has § ^ virtually disappeared with the compulsory cadastral reference when registering the property in ¡j ^ 4 to the Land Registry office. Data sources are shown in Table 1 in order of importance. ^ 5 2 ® ï to 4.5 Measurement and landmark setting of easements In the Law and in real estate, easements is a limited right, which confers on the owner of the dominant plots rights over another person's land (denominated servient plot). There are many types of easements, the most common being righty-of-way easements, utility easements, sea-land easements light and sight easements, aqueduct easements, party-wall easements, beam easements, etc. In many cases the intervention of an expert is necessary to verify whether a certain easement is observed, and to prevent the infringement of the rights. Data sources are shown in Table 1 in order of importance. 4.6 correspondence between urban plans and actual property lines Inconsistencies generally occur between urban planning and the relevant municipal general plans, which may result in serious property disputes, both over the original plots (which may be more or less affected) and over the resulting plots after the re-parcelling. Data sources are shown in Table 1 in order of importance. 4.7 Expropriation As established by the Spanish Civil Code in Art. 349, no person shall be deprived of their property except by the competent authority and justified by public utility, always following a suitable compensation. When this requirement is not fulfilled, the Judges shall protect and, where appropriate, restore possession to the dispossessed complainant (Sierra, 2000). On many occasions errors occur when expropriating land for public works. These errors are often due to differences between the existing documents and the actual property lines. Data sources are shown in Table 1 in order of importance. fN S o 4.1 4.2 4.3 4.4 4.5 4.6 Deed of sale 2 - 2 2 2 3 Land Registry 1 - 1 1 1 2 Field measurements 3 1 4 - 4 4 Cadastral Cartography 5 - 7 6 7 8 Historical Cadastral Cartography 7 - 8 7 8 9 Historical Aerial Photography 6 - 6 5 6 7 Physical evidence 4 - 5 4 5 6 Testimony 8 - 3 3 3 5 Project overlapping - - - - - 1 Table 1. Sources for every type of expert report, in order of importance. 5 case studies Ordinary Judgment No. 1062-2009. District court No. 4 of Orihuela (Alicante) May 2012 In 2006, the high-point of the real estate boom in Spain, in the municipality of La Granja de Rocamora (Alicante), a rural area was reclassified as urban by an Integrated Action Plan (PAI) in the outskirts of town. In 2008, the plaintiff purchased one of the plots included in the PAI. Three months after, the owner of a neighbouring property located outside the PAI (defendant), put a fence on his property invading nearly half of the plaintiff's plot. At the hearing, as there were conflicting expert reports from the parties, the judge decided to order a judicial expert report. The report involved: - Taking measurements in the field in order to check if it the plot matches the PAI - Taking measurements of individual plots and fencing in order to verify their correspondence with the project and quantify the area if invaded. - Matching and identification of Land Registry tittles of existing plots and their exact location on the ground. - To carry out the expert report the following actions were performed: % 1 - Field planimetric survey of the properties involved and urban elements like sidewalks, building §5 ^m facades and other geographic features. The work was performed with a GNSS RTK, and in | areas without enough satellite coverage, a total station was used. § - Overlay of the various maps involved in the litigation: surveyed properties, historical and | current cadastral cartography, maps attached to property deeds and urban development | project. The historical orthophoto maps of 1956 were also used to analyse the historical | evolution of property ownership in the area. | I - From the preceding actions and the study of the documentation of the court file the report's § § author comes to following conclusions. § I - The plaintiff is right in his claims, as the fence invaded 654 m2, 47% of the surface of the | plot acquired within the PAI. g - The defendant is also right as regards property boundary, because the fence accurately marks I the boundary lines specified both in the cadastre and in the deed. | <5 - The contradiction is explained by the fact that when performing the PAI, the boundaries of | ^ the original estates were incorrectly defined, so that the project of urban planning did not | r^ consider the disputed area of the estate of the claimant and included part of its surface. | ^ f fc Ordinary Procedure 311-2009.contentious Administrative court No. 5 of Valencia. | riS may 2011 K In 1995, the Urban Land Subdivision Compulsory Project of the Execution Unit N 3 was rio Í executed in Riba-Roja de Túria (Valencia - Spain). It is a residential area, 16 kilometres far from