Investment approach
Cargas in the nota simple: which encumbrances pass with the property
Mortgages, easements and attachments are registered as cargas and pass to the new owner with the property unless they are cleared before the purchase.
Cargas are the encumbrances registered against a property, and every one of them appears in the nota simple registral, the Land Registry extract. Unless they are cleared before the purchase, they pass to the buyer along with the property. That is why they need to be checked before the deposit is paid, not after.
What is registered as an encumbrance
Cargas is an umbrella term for very different things recorded in the Land Registry. It covers an outstanding mortgage taken out by the previous owner, easements (a right of way or another right of use in favour of third parties), attachments for court-ordered or tax debts and, in some cases, rights of first refusal and pre-emption (tanteo y retracto).
The seller's mortgage: the most common case
If there is an outstanding mortgage on the property, the standard practice is this: the remaining debt is paid off from the buyer's funds on completion, and the same escritura usually retains that amount to pay the bank. The mortgage entry itself is cancelled by a separate deed, the escritura de cancelación, which the bank signs — sometimes weeks after completion — and a gestoría then registers. Until it is registered, the mortgage still shows in the nota simple even though the debt has been paid off. It is a routine, well-established procedure. But it needs precise coordination of amounts and timing between the seller's bank, the notary and the buyer.
Less obvious encumbrances
Easements (a neighbouring building's right of way across part of the plot, for example) and some pre-emption rights cannot be seen when you view the property. Yet they seriously limit how it can be used in future. The only way to find them is to read the nota simple closely and, where necessary, the property's historical records.
How DNPI checks for them
Checking cargas is part of our standard due diligence before the deposit is paid. If an encumbrance turns up, we structure the deal so that removing it is a condition of completing the purchase. That makes it a task resolved before completion rather than a problem for the new owner afterwards. The overall checking procedure is covered in our articles on the nota simple and the due diligence checklist.
Questions and answers
If there is an attachment on the property for the seller's debt, can the purchase go ahead at all?
As a rule, only once the attachment has been lifted, and only the authority that ordered it — the court or the tax agency — can lift it, through its own mandamiento de cancelación; the notary cannot do this. In practice, part of the price is often withheld or paid straight towards the debt at signing, and the attachment is cleared in the Land Registry afterwards, once that order arrives. Until then, buying with the attachment still registered is risky, so the deal should be structured so that clearing it is a condition of completion.
Are all encumbrances removed automatically when a property is sold?
No. An encumbrance is removed by a separate legal act, which as a rule is also registered. If that act is not carried out, the encumbrance stays registered against the property even after it changes hands.