The admission of the unilateral mortgage was consecrated by the current Mortgage Law (LH) which in article 141, among the voluntary mortgages, cites the one constituted by unilateral act of the owner of the mortgaged property. The precept develops the art. 237 of the Mortgage Regulation (RH).
That is, not only unilateral mortgages are currently admitted, but they are duly developed legislatively and jurisprudentially, so that according to the aforementioned article 141 the acceptance of the person in whose favor they were established or registered will be recorded in the Registry by marginal note, whose effects will be rolled back to the date of its constitution. If the acceptance does not appear after two months have elapsed, counting from the requirement that for such effect has been made, the mortgage may be canceled at the request of the owner of the property, without the consent of the person in whose favor it was constituted.
And art. 237 of the RH regulates the cancellation of these mortgages.
The most frequent assumption of unilateral mortgages is that granted in favor of the Administration (especially in the case of deferrals in the payment of tax obligations) or in favor of credit institutions (in situations of economic difficulty of companies, individual or legal persons, to be able to refinance the debt).
It is not this place, being a practical work, to analyze whether the unilateral mortgage is an assumption of reservation of rank, or is a mortgage subject to suspensive condition, or is a unilateral legal business that causes or does not cause either the acquisition or the constitution of a real right, or it is an expectation of a mortgage, or it is a real fact, but it is not yet a real right and other puns that are desired; in any case, as expressed in the Resolution of the DGRN of March 4, 2010: [j 1]
Notwithstanding the qualification or nature attributed to the unilateral mortgage, this will require, for the full effectiveness of the real right, its prior acceptance. Hence, this General Directorate, has been recognizing in its various resolutions the lack of effectiveness of the unilateral mortgage that is pending acceptance, since it does not arise as a real right but since it is "formally accepted."
Therefore, the practical rules and effects of these mortgages are of greater interest.
Requirements for the constitution of a unilateral mortgage
As it is a case of unilateral constitution, the rules and the normal requirements of any voluntary mortgage must be taken into account for its constitution, and only with respect to the mortgaging party, which can be summarized as follows:
* Personal element: ability of the mortgagee and possibility of non-debtor mortgage, all of which is studied in Personal Mortgage Elements. At this point, it should be noted that the mortgagee's capacity is required at the time of the constitution of the mortgage, not affecting the subsequent vicissitudes, such as the case dealt with in the Resolution of the DGRN of November 2, 2011 [j 2] (The declaration of bankruptcy of the mortgagor before the mortgage deed was presented to the Registry, but this was prior to the date of the declaration of course.)
* Objective element, with application of the general doctrine that is analyzed especially in the following topics:
Things and rights that can be mortgaged
Obligations that can be guaranteed with mortgage
Objective extension of the mortgage
* Formal element: as in any mortgage public escrtitura is demanded, but, in addition, that is expressly constituted as a unilateral mortgage; for that reason, the Resolution of the DGRN of May 23, 2013 [j 3] assuming that Article 138 of the Mortgage Law allows voluntary mortgages to be unilaterally or bilaterally constituted, affirms that it can not be understood that a bilateral mortgage that may be defective because a defect in the consent of the creditor has been automatically converted into a unilateral mortgage and subject to the regulation of article 141 of the Law, since the peculiar effects that this last type of mortgage entails require that it be constituted expressly with that character.
Effects of the unilateral mortgage
* Before being accepted:
The Mortgage acts as a lien or charges on the mortgaged property, remaining under the protection of the fundamental principles of the system and affecting the potential purchaser of the property.
The unilateral mortgage, once registered, must be understood as existing without prejudice to the effects of a possible non-acceptance in the specific cancellation procedure referred to in Articles 141 of the Mortgage Law and 237 of the Mortgage Regulations. It is created by means of the inscription of the deed of constitution a facultative right or of legal modification from the side of the creditor and a binding offer from the side of the constituent in the terms that
