Content
1 Characteristics of Legal Mortgages
2 Legal mortgages allowed
2.1 Examination of the most important cases
2.1.1 Legal mortgages by dowry or paraphernalia
2.1.2 Mortgage for children under parental authority
2.1.3 Mortgage by reason of the guardianship
2.1.4 Mortgage of reserve assets
2.1.5 Mortgage in favor of the State, Province or Municipality
2.1.6 Legal Mortgage for Insurers
3 Additional Resources
3.1 In doctrine
4 Basic legislation
5 Legislation cited
6 Jurisprudence cited
Characteristics of legal mortgages
Voluntary mortgages are defined in art. 138 of the Mortgage Law (LH), in contrast there is no precept to define legal mortgages, limiting art. 158 of the LH to indicate that legal mortgages are those expressly admitted by laws with such character and that the persons for whom the Mortgage Law is granted shall have no other right than to require the constitution of a special mortgage sufficient for the guarantee of Your right.
Its most important characteristics can be determined:
They have clausus numbers; the law requires that they be expressly admitted. For this reason, it is not possible to extend to cases not provided for by law; in this sense, as has been said with respect to community expenditure or urbanization fees; the Resolution of the DGRN of January 22, 2013 [j 1] states that the credit of the community of neighbors for debts to the community, is a preference that preaches the Law but does not have the character of tacit legal mortgage nor is a real right that allows to alter the mortgage range, (in front of the load previously registered, especially if the owner of the mortgage has not been a party to the procedure); in this line the Resolution of the DGRN of June 23, 2014 [j 2], according to which in the list of legal mortgages of article 168 of the Mortgage Law does not appear any legal mortgage due to preferential credits of the community of owners ; as well as Judgment No. 163/2014 of AP Vizcaya, Section 4, March 11, 2014 [j 3] when it says that there is no rule expressly stating that urbanization fees are considered tacit legal mortgages.
They are granted by means of the corresponding title duly registered (thus article 159 of the LH says that legal mortgages are validly established requires the registration of the title by virtue of which they are constituted. in the act of granting any public instrument, which results in the right to legal mortgage in favor of any person, the Notary, subject to the provisions of the notarial law, shall notify those who, if they attend the act, of the obligation to lend such mortgage and the right to demand it.
The so-called tacit mortgages have disappeared, although sometimes they are mentioned as preferential credits; in fact are not real mortgages cited as such in art. 78 of the General Tax Law when it says that "in taxes that periodically tax assets or rights that can be registered in a public registry or its direct products, certain or presumed, the State, autonomous communities and local entities will have preference over any other creditor or purchaser, even if they have registered their rights, for the recovery of debts accrued and not paid corresponding to the calendar year in which the payment is demanded and to the immediately previous one) "; and they are not, because, as recognized in the TS Judgment, Room 3, of the Contentious-Administrative, March 12, 1997 [j 4] the majority doctrine says that it is rather a real affection of the goods to some obligations pre-existing to its transmission.
In any case, as the DGRN Resolution of April 3, 1998, [5] said, the legal mortgage, implying a restriction of the ordinary content of the right of domination, can not be presumed but would claim a legal establishment undoubted.
Title and registration are now required.
The law gives them the right to demand them in certain cases. According to art. 160 of the LH, the persons for whom the Mortgage Law recognizes may require such mortgage on any real estate or real rights that the obligor may have available at any time, even if the cause that has given rise to it, such as marriage, guardianship, parental authority or administration, provided that the obligation that should have been secured is pending compliance.
They are constituted to guarantee certain interests in need of protection. The constitution may be voluntary (extrajudicial) or required to be constituted and, if necessary, judicially extended, in which it must proceed according to art. 165 of the LH, namely:
1ª. Anyone who has the right to demand it
