Characteristics of legal mortgages
Voluntary mortgages are defined in art. 138 of the Mortgage Law (LH), however there is no precept that defines the legal mortgages, limiting art. 158 of the LH to point out that legal mortgages are those expressly admitted by the laws with such character and that the persons in whose favor the Legal Mortgage Act grants will have no other right than to demand 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. Therefore, it can not be extended to cases that are not legally envisaged; in this sense, as has been said with respect to community expenses or urbanization fees; 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 a tacit legal mortgage nor is it a real right that allows altering the mortgage range, (putting before a previously registered load, especially if the owner of the latter 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 listing of legal mortgages of Article 168 of the Mortgage Law does not appear any legal mortgage by reason of preferential credits of the community of owners ; likewise, Sentence nº 163/2014 of AP Vizcaya, Section 4ª, March 11, 2014 [j 3] when it says that there is no norm that expressly indicates that the urbanization quotas are considered as tacit legal mortgages.
They are granted by means of the corresponding duly registered title (thus Article 159 of the LH says that for the legal mortgages to be validly established, the registration of the title in virtue of which they are constituted is required, and Article 294 of the RH says that in the act of granting any public instrument, from which the right of legal mortgage in favor of any person, the Notary, subject to the provisions of the notarial legislation, will warn those who correspond, if they attend the act, of the obligation to lend said mortgage and the right to demand it.
The so-called tacit mortgages have disappeared, although sometimes they are mentioned as such, which are preferred loans; in effect, the one cited as such in art. 78 of the General Tax Law when it says that "in the taxes that periodically encumber the assets or rights registered in a public registry or its direct, certain or presumed products, the State, the autonomous communities and local entities shall have preference over any other creditor or purchaser, even if they have registered their rights, for the collection of the debts accrued and not paid corresponding to the calendar year in which the payment is demanded and to the immediately previous) "; and they are not, then, as recognized by the Judgment of TS, 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 pre-existing obligations to its transmission.
In any case, as stated in the Resolution of the DGRN of April 3, 1998 [j 5] the legal mortgage, by implicating a restriction of the ordinary content of the right of ownership, can not be presumed but would claim an undisclosed legal establishment.
Now title and registration are required.
The Law gives the right to demand them in certain cases. According to art. 160 of the LH, the persons in whose favor the Legal Mortgage Act recognizes may demand said mortgage on any immovable property or real rights that the obligor may have at any time, even if the cause that gives rise to it has ceased, such as the marriage, guardianship, parental authority or administration, provided that the obligation that should have been secured is pending compliance.
They are constituted as a guarantee of certain interests needing protection. The constitution may be voluntary (extrajudicial) or require its constitution and, where appropriate, its extension judicially, in which must proceed in accordance with art. 165 of the LH, namely:
1st The one that has the right to demand it will submit a brief in the Court or Court of the domicile of the obligor to borrow it, asking that the mortgage be constituted, fixing the amount for which it should be constituted and indicating the assets that may be taxed in it, or at least , the Registry where those registered by the same obligated person must be registered.
2nd. This document will accompany precisely the title or documents that produce the legal mortgage right, and if possible, a certification from the Registrar in which all the mortgageable assets possessed by the defendant are recorded.
3rd. The Judge or the Court, at his hearing, shall bring to his presence all those interested in the constitution of the mortgage, in order that they may accrue, if possible, as to the way of verifying it.
4th. If they agree, the Judge or the Court shall order the mortgage on the terms agreed upon.
5th If they do not agree, either in regard to the obligation to mortgage or in terms of the amount to be insured or the sufficiency of the offered mortgage, the claim will be transferred to the defendant and the proceedings will be followed for the proceedings. incidents in the Civil Procedure Law (LEC).
These mortgages are framed, as a general rule, within the so-called security mortgages.
The legal mortgage, once constituted and registered, has the same effects as the voluntary one, without more specialties than those expressly determined in this Law, whatever the person who must exercise the rights that the same mortgage confers. (Article 161 of the LH). And therefore, in the case of expansion, will not affect the holders of rights in rem registered prior to the extension
