Mortgage Law 2010 Colección: Traducciones del derecho español Edita: © Ministerio de Justicia - Secretaría General Técnica NIPO: 051-10-042-6 Traducción jurada realizada por: Caja Alta Maquetación: Composiciones RALI. S.A. Costa 12-14 - 48010 Bilbao - Bizkaia MORTGAGE LAW Decree of February 8th 1946 by virtue of which the new official draft of the spanish mortgage ACT is passed Revised Text by virtue of Decree of February 8th 1946 (Spanish Official State Gazette (BOE) No. 58, of February 27th) EXPLANATORY STATEMENT The Act of December 30th 1944 that introduces substantial amendments to the Spanish Mortgage Act authorises the Government in the Second Additional Provision to publish a new draft of the Spanish Mortgage Act in less than one year. The aim is to harmonise the current legal texts, abridge the content of the Registry entries in accordance with the main principles of the system and provide legal rules with a more appropriate order and necessary stylistic unity. The Spanish Mortgage Act, its Amendment, the Regulations Amendment, the Supreme Court’s Decisions and the Principles of the Directorate-General of the Registries and Notaries are the basis of this work. From the beginning of his term, the undersigned Minister has developed this difficult and exhaustive task. At that time, the Spanish Parliament agreed to a twelve-month deadline within which to publish the New Act; eight out of the twelve months had already passed. The Commission appointed in the corresponding Management Centre for this purpose has made a significant effort to finish this arduous task in accordance with the legal provisions. The result of this work is the revised text that is sanctioned by virtue of this decree. The new text faithfully fulfils the requirements of the unavoidable writing rules of the 1944 Act. A new distribution of the Act Text has been implemented to provide a more systematic order. In the first place, Substantive Rules are mentioned; Adjective and Organic Rules, which regulate the Directorate-General and the Registrars, are mentioned at the end. Though the new text has fewer articles than the previous one, some articles maintain their original numbers; the numbers of the most important ones and the most frequently mentioned in judgments remain the same. This decision is not only due to tradition, which could be an unreasonable argument, but also because it facilitates the knowledge and application of the legal principles regarding the matters regulated by the articles. Some regulations with an unquestionable legal hierarchy have been transferred to the new text, such as those related to the responsibilities of the Territorial Area of Registries and the legal safeguard of their entries. Likewise, several articles of the Act, whose aim was to organise the information or to provide some explanations, have been removed and included in the Regulations. It was considered that although it was logical to include them in the original Act, it was not appropriate to include them now since they have a regulatory purpose. On the other hand, an effort has been made to unify the style of both revised acts by introducing slight grammatical corrections, substituting idiomatic expressions and archaic words or words which are not used in the current legal nomenclature; it is true that in order to implement this all-encompassing task more time would have been necessary for further reviews of the text draft. The legislator expressed his intention to record brief Registry entries in accordance with modern demands, which requires the greatest simplicity. The new text simplifies not only the main entries which refer to the property background and to the real property rights, but also the filing entry, which is extremely important for our property system. There are some elements that contribute to the clarity and understanding of the Registry to make it more accessible for interested parties, such as the exhaustive simplification of the formal requirements related to the entries in accordance with the main principles of the system, the removal of some references to rights which need to be included in special articles and the removal of rights of a personal or debenture nature of the immunisation Registry jurisdiction. All the rules of the 1944 Amendment are included in the New Act almost literally or with small stylistic corrections. Some of them include a new order system. It is unnecessary to explain the modifications and innovations of the new articles because they were previously mentioned and explained in the Explanatory Statement of the 1994 Act. Thanks to the power granted to the Ministry of Justice by the legislator regarding the territorial division of the Registries and the regulation of the Organic Law of Registrars, the new necessary rules to harmonise the —2— Registries with the current provisions have been introduced. The aim is to implement the legislative order regarding the substitution of the Registry types for personal categories of the Registrars. With the new text, that definitively regulates these matters, the authorisation granted by the legislator ends. The new rules that establish the organic system of civil servants that work in Registries acquire their traditional legislative nature. The undersigned Minister, fulfilling the requirements of the Spanish Parliament by the specified deadline, has the honour to subject the attached document for the approval of the Head of State and his Council of Ministers. Draft Decree At the proposal of the Ministry of Justice, in accordance with the Council of State and after consultation with the Council of Ministers, I hereby stipulate the following: Single Article: The new official draft of the Spanish Mortgage Act is passed and the Minister of Justice is authorised to publish the attached text in the Spanish Official State Gazette (BOE) in accordance with the Second Additional Provision of the December 30th 1944 Act and with the Single Article of the December 31st 1945 Act. TITLE ONE The Property Registry in Spain and deeds subject to registration 1. The aim of the Property Registry in Spain is to register acts and contracts related to property ownership and real rights. These registrations will be included in the Registry of the Territorial Area where the properties belong. The Registry entries which are included in the books and specified in Article 238 and next, which refer to registrable rights, remain under the safekeeping of the Courts and have the same effect unless they are inaccurate in accordance with the provisions of this Act. 2. The following elements will be included in the Registries mentioned in the previous Article: 1st Deeds transferring ownership of properties or real property rights. 2nd Deeds that convey, acknowledge, transfer, modify or extinguish use and usufruct rights, rights of occupancy, emphyteusis, mortgage, ground rent, land easement or other real property rights. 3rd Acts and contracts by virtue of which real property rights are granted to someone; however, this person is required to transfer them to another person or to invest the value amount of it in a determined object. 4th Court’s decisions declaring legal incapacity to administer, absence, decease or any other situation that modifies the legal capacity of individuals regarding the rights to freely dispose properties. 5th Lease and sublease contracts or transfer activities and contract subrogation. 6th Property acquisitions and real property rights belonging to the State, or to civil or church entities, in accordance with the provisions of laws or regulations. 3. In order to register the previously mentioned deeds, they should be included in an enforceable public deed or in an authentic document issued by the Judicial Authority or by the Government or its officers in accordance with the provisions of the regulations. 4. There are other types of deeds that will be included in the Registry, such as those deeds mentioned in the second Article, granted in a foreign country and having an effect in Spain in accordance with the law. On the other hand, there are enforceable judgments declared by foreign Courts which should be fulfilled in Spain in accordance with the Spanish Law of Civil Procedure. 5. Deeds referring to the mere or simple fact of possessing properties will not be registered. TITLE II Characteristics and effects of registrations 6. The registration of deeds in the Registry can be indiscriminately requested by: a) Someone who acquires the right. b) Someone who transfers the right. c) Someone interested in ensuring that the right should be registered. d) Someone who represents any of the above mentioned. —3— 7. The first registration of each property in the Property Registry in Spain will be a property ownership and will be registered in accordance with the regulatory procedures included the Title IV of this Act. The holder of any real property right whose owner has not registered his ownership is entitled to request the deed registration in accordance with the Regulation provisions. 8. From the moment of the first registration, each property will have a different and sequential number. Registrations referring to the same property will have another special and sequential number. The following categories will be considered as a single property with the same number: 1st Territories or special jurisdiction areas in Galicia and Asturias, provided that only one direct owner or some undivided joint ownerships are recognised; this area can be divided into plots as a useful property or given to different landlords provided that the area is within the boundary lines of the mentioned territory. Only one direct domain will be considered in the case of registrations that include several landlords who, as direct landlords, receive rents from special jurisdiction areas provided that these lands are not equally divided among them. 2nd All agricultural holdings, with or without workers’ cottages, that constitute an organic unit.