eng / dk / es   

A crack in the protection of mortgagee against third party

The following is a more detailed explanation about the existence of a dangerous crack in the principle of faith in public registry and proteccion against a third party, regulated by the Article 34 of the Spanish Mortgage Law, when registered ownership is acquired from a "voluntary" or an "apparent" heir, according to Article 28 of the same law.

 

In accordance with Article 34 of the Spanish Mortgage Law, if a third party who in good faith acquires any right from a person appearing in the Registry with faculties to transmit, the acquisition will be maintained once the right has been registered, despite further annulment by virtue of reasons which are not reflected in the Registry. You should note that good faith of third parties is always taken for granted, while it is not proven that third parties are aware of Registry inaccuracies.

 

Thereby, that article protect the third party who acquires relying in the validity of the Registry at the time of signature of the contract, although subsequently, the content of the Registry will not be according to the reality and appears anyone claiming the right as yours or trying to disturb it.

 

Having said that, we will proceed to analyze the Article 28 of the mentioned Mortgage Law, which establishes that:

 

Registrations of properties or real property rights acquired by succession will not have effects on third parties until two years from the official death date have expired, except for registrations of succession deeds in favor of forced heirs”.

 

In light of that provision, when a third party acquires the registered property from an apparent heir, the effects of the public faith registration are temporary suspended. On the opposite, such suspension does not occur when the third party acquires from a forced heir.

 

So, it is strongly recommended that you always check the personal condition of the property owner in this kind of situations, as forced or voluntary heir, because depending on that condition the effectiveness of the principle of faith public registration will be suspended, during the term of two years from the date of the death of whoever caused it, according to the cases.

 

For these purposes, in accordance with Article 807 of the Spanish Civil Code, the following persons are forced heirs:

 

  1. Children and their descendants and ascendants.
  2. In the absence of the foregoing, the parents and ascendants in respect of their children and ascendants.
  3. The widower or widow in the manner and to the extent set forth in the Spanish Civil Code.

Consequently, voluntary heir is who inherits without having the quality of forced or legitimated heir according to the content of the mentioned article. And, who behaves as a legitimate heir of the property or right entered in the register without being it, is an apparently heir.

 

Therefore, regarding the case concerning us here, and which you should activate all the alarms, is the following:

 

The acquisition of a real property from an apparent or voluntary heir who appears as a registered owner, within the period of two years from the date of death of the deceased, proceeding to the subsequent registration thereof in the land registry when, during that period, appears a real heir attacking both, the inscription of the apparently heir, and the third party ownership registration.

 

Once the deadline has passed, the third party shall be fully covered by the principle of faith public registry. Meanwhile, and if there is no proper caution, you can be involved in a property dispute against the legitimated heir, in which you cannot exercise foreclosure defenses which are provided by Spanish Mortgage Law.

 

It is at this point that the third acquirer could lose the property, which possession should be delivered to the real heir.

 

Finally, based on the above, we recommended you to do a more carefully evaluation of those kinds of acquisitions, when the property comes from an inheritance process.