But this subsection must be related to the previous section and be understood only as applicable in the case of parcels resulting from equidistribution proceedings, which is not the case raised in this appeal.
3. With the issue centered, it is necessary to analyze the applicable substantive regulations, which are contained in Law 7/2002, of December 17, on the Urban Planning of Andalusia (B. O. J. A. of December 31).
Article 66.3 of the aforementioned Law determines that any act of urban subdivision will require an urban planning license or, where appropriate, a declaration of its unnecessaryness, stating in its second section that no public deed may be authorized or registered in which it is contained act of subdivision without the provision of the mandatory license, or the declaration of its unnecessaryness, which the Notaries must testify in the corresponding deed. The same article 66, in its first section, defines what is understood by urban subdivision, noting in the second paragraph of section b), that undeveloped land, which is the case of this appeal, is also considered to reveal a possible urban subdivision assumptions of horizontal divisions.
Consequently, it contains a legal presumption of urban subdivision, which can only be disproved in the corresponding administrative or jurisdictional procedure, so the requirement to provide the license or declaration of unnecessaryness is deduced from article 66.3 of the Urban Planning Law. of Andalusia and 78 of Royal Decree 1093/1997, of July 4, establishing an administrative regime of intensity greater than the pure urban sanction and delves into the requirements of municipal control prior to registration in order to access the Registry only valid acts and with full regulatory coverage.
Flat horizontal property.- 1. A deed is presented in the Registry whereby the undivided owners of a property classified as urban land, segregate a portion of it for transfer to the City Council, which is carried out unilaterally, and the rest is divided into “horizontal property lying down” in eight plots, awarding them to the different co-owners. It should be noted that the division exhausts the entire surface of the parent farm and that the soil is not configured as a common element.
The Registrar suspends the registration of the segregation and assignment in favor of the City Council, apart from another defect not appealed, for not accrediting the urban planning license or certification of its unnecessaryness, and the constitution of the “horizontal property” regime for also lacking said license or certification.
2. The recurring Notary Public points out, with respect to segregation, that such a license is not necessary since the purpose of said operation is to separate a farm that, according to the planning of the area, is dedicated to a green area, but the Registrar is right to affirm that the administrative license supposes the control mechanism by the competent public powers of the legality of certain acts of the administered; it is the Administration called to exercise this control that must give an express pronouncement.