III. Mortgage cancellation by the owner alone

A further alternative, and not without its hazards for the banks, is created by the amendment to Art. 82 of the Spanish Mortgages Law. By means of this, the owner of an encumbered piece of land is given the possibility - alone and without any participation from the bank or the beneficiary to apply for the cancellation of certain burdens. Resolutory conditions ("condiciones resolutorias") (1) are expressly named by the legislator which should guarantee payment of the residual purchase price and mortgages(2), which as a safeguard are applied the same requirements, registered.

In the past, cancellations of all types of encumbrances were only possible either on production of a notarial cancellations certificate, in which the beneficiary registered, would expressly forgo his registered entitlement, or by an indefeasible court sentence, which adjudged submission of consent to the cancellation of an entry(3). Since January 2002, the real estate owner has a right of application enabling him to apply for the cancellation of the registered mortgage on his land or resolutory condition as soon as the envisaged period of limitation for such types of guarantee in civil legislation has expired. 
Decisive for the beginning of the period of limitation is the date foreseen for compliance with the secured obligation given in the notarial document. A further condition for cancellation and thereby providing security for the creditor is that the property registry will not show "for the following year" that mortgage execution was introduced, debt restructuring performed or the period of limitation interrupted. It is to be supposed that to all intents and purposes this provision is a type of "sweeper regulation" and therefore that the period of one year begins once the period of limitation expires. However, owing to rather unclear expression on the part of the legislator, doubts spring to mind, and, at least from the wording, it should not be ruled out that the one-year period actually begins already from the due date of the principal claim(4).

As per Art. 1964 of the Spanish civil code, the period of limitation for mortgage enforcement action is 20 years.

IV. Application to the property register and its corresponding processing by e-mail(5)

In the past, all documents passing through the Spanish property register had to be presented in person. The Spanish property register was to all intents and purposes run like a public register and although anyone wishing to look into a matter had to demonstrate proof of justified interest(6), even in the past this principle was not greatly enforced. This right to inspect is now to be further defined. A justified interest will be understood as such when an inquiry on the part of an authority or a civil servant on duty is made. Although the law makes no particular reference to this effect, in practice it can be assumed that in the great majority of cases, inquiries made by Spanish lawyers will be attended to even if unaccompanied by proof of justified interest.

Every certificate presented in the property register is recorded ("asiento) in the so-called "Libro Diario" (daily journal) together with exact details of date of entry and time of day. Art. 248 of the Spanish Mortgages Law, now amended through the Budgetary law annexe, permits recording of certificates in the daily journal, whether these be brought personally, sent by post, fax or electronically, i.e. by e-mail. Details of this regulation are however subject to ordinance, which is to be issued in the near future. Certificates which arrived by post were always give time of entry as the time at which mail was opened in the property registry(7), thereby involving a risk of uncertainty.

Both information from the register ("nota simple") as well as confirmations of authenticity may be requested by fax or e-mail from 1^st January 2002; corresponding applications are to be processed(8). Once again details are subject to ordinance, still under elaboration.

V. Overview

Despite the fact it lags behind in other areas (for example in the post office service and public administration etc.) with this new regulation, the kingdom of Spain has once again proved its position as European forerunner as regards prompt and extensive introduction of modern telecommunications as far as is possible. What remains outstanding is the ordinance to implement the regulation, which hopefully will create a useful procedure. Immediately applicable and to be welcomed are the processing deadlines for land registry judges and increased facilities for notaries. Those familiar with the problems of Spanish authenticating practices that occurred in the past with the reproduction of powers, will be able to appreciate the effort of this type of reform.


(1) As regards this guarantee/encumbrance that can be registered, compare in particular Rodriguez-Garca, La condicin resolutoria, medio de garanta en las ventas inmobiliarias a plazo, Dykinson Madrid 1997
(2) The Spanish Mortgages Law in general, see Meyer ZflR 2000, pp. 431 & 436. Also Lauer/Houis, ZflR-Report 2000, pp. 661 & 666
(3) Art. 82 of the Spanish Mortgages Law; see also Meyer loc.cit. p.432
(4) Original verbatim text: Boletn Oficial del Estado nº 313 del 31 de diciembre 2001, supplementary provisin p. 50614
(5) For the technical sequence of events, see the Spanish Land Registry Judges gazette: "Registradores de Espaa, Vol. 7 July-September 2001, p. 10 onwards
(6) Art. 221 of the Spanish Mortgages Law
(7) Art. 418 No. 3 of the Spanish Mortgages Order
(8) Incorporation of Numbers 9 & 11 of Art. 222 and amendment of Art. 227 of the Spanish Mortgages Law

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