Real Estate Law and Mortgage Principles: A Comprehensive Guide
Real rights are those q acquisition entitle the holder to, attending certain conditions, become owner of the thing on q relapse. There are three main types: –
Scoring q initially empowered to acquire another one thing before the q q would be alienated. To this effect, the owner of the thing you must notify the owner of the score, the proposed disposition. If violating the score, the owner disposes of the thing without notifying the groping, it can do the same q still be passed by depriving him of it .-
Retracto entitles the customer to buy something after being transferred to another and so q he gave her. It is a right q is exercised only after q is disposed to another, the holder of the withdrawal is entitled to claim for himself.Option allows us to pass something, whose disposal is not necessary nor q has been performed and q is even projected. The thing belongs to another.
2 .- The real estate registration law concept and nature estate registration law has been defined as “the set of civil law rules governing the forms of advertising for acts of creation, transfer, modification and termination of real rights on farms and guarantees of personal rights or credit through the Land Registry.
“This definition presupposes a prior evaluation of this discipline in the following aspects: • In regard to its nature, is characteristic of the law property registration in it concurrency requirements of various kinds. [This integrated civil standards, administrative rules and procedural rules]. The existence of different legal disciplines wonder whether the D º estate registry is an independent part of private law or an integral part of civil law. We can say that is a lot of civil law, as the specific object of D º estate registration is the legal effect of registering publicity, essentially civil matters. · Regarding the object, the D º estate registrar presented as characteristic of being a law the object are not all real estate, but only the estate by nature, ie, farms and some of the properties by analogy (administrative concessions for public works). • In order to reach the standards of real estate D No registration, no say that this law is not interested in real º d static, ie its structure and content, but its dynamics, ie all its problems, transfer, modification and termination.
The farm inmatriculación: the concept
Art. LH 199 speaks of “farm inmatriculación not registered for anyone” and Art. 207 of the “inscriptions inmatriculación” Therefore, for the inmatriculación our mortgage legislation is the act whereby a property enters the Land Registry. By inmatriculación gives the starting point of legal history in the farm states that Registro.ROCA SASTRE inmatriculación is income from a farm in life registration, conducted by a first registration of ownership in favor of inmatriculante , which opens registration folio particular, is obtained by means peculiar and has effect específicos.En a breakdown of that definition, we must stress the following points: · is the income of a farm in the registration life. With inmatriculación farm registration comes to life. · Is performed under a first inscripcion domain. It should be an initial registration of previously unregistered property, and must be registration of the domain, not a limited real right. · Open registration folio particular leaf. The Registrar gives the farm the number that corresponds in sequential order with other farms and it intended the number of sheets that fit. · Is obtained by special means (art. 199 LH).
3) Principles mortgage (concept, purposes, etc …)
Top of praying or instance:
the registration of securities in registration may be made either: “For you purchase the” For derecho. To forward derecho. “For anyone interested in securing the right that should be inscribir. “For any person representing any of them. ·
Registration or qualification principle of legality
It implies that the registrars will qualify under the responsibility of the legality of extrinsic forms of documents of all kinds under which registration is sought, and the ability of grantors, and the validity of acts devices contained in public documents, so that results from them and entries in the registry (Article 18 LH). This implies that such a characterization, which exercises the registrar under his sole responsibility extends to three points: ·
Top priority:
is enshrined in Article 17 LH (<<Registered or notations in the register any title or declaratory translational domain of the property or rights in rem taxes, he may not register or entered any one of equal or earlier date that is at variance or inconsistent, which is transmitted by severe property or the same property or property right. If only would have extended the entry of presentation may not either register or entered any other title of the class referred to above during the period of sixty days from the date following the same seat.
>>), Through it affirms the principle of the Mortgage Law, which is the motto of Registrars “Prior potior Jure Tempore. This principle implies that entered or notations in the records, any title or declarative domain conveying the property or real rights imposed on them CAN NOT WRITE OR ANY OTHER REGISTER OF EQUAL OR ABOVE DATE which might oppose or contradict, laying forward or severe property or real right of property itself, but with one exception, if you have only practiced the entry of presentation may not register or entered any other title of the class before that during the period of 60 days ( force of the seat section 97 RH: <<Registration takes practice, if not mediare defects, within fifteen days from the date of entry of presentation, or thirty if there just cause, and in any event within the term of this seat referred to art. 17 LH ….>>) Days from the date following the same seat. ·
Top of specialty:
it implies that limited real rights, the guarantee and generally any charge or limitation of ownership or real rights to take effect against third, shall be included in the registration of the estate or interest in who is the subject. Easements also may consist of actual registration of the dominant estate as a quality of it. LH Article 13 lays down the principle of specialty, and responds to the keeping of records by farm or Folio Real (<<The limited rights, the guarantee and, in general, any charge or limitation of ownership or real rights, order to be enforceable against third parties shall be included in the registration of the estate or interest in that fall. The real easements may also be indicated on the registration of the dominant estate, and quality of it.
>>). ·
Successive treatment principle (Article 20 LH) implies that to record or register the title by being declared, transfer, encumber, amend or cancel the domain and other interests in land, must contain previously registered or noted the right of the person granting or on whose behalf such acts will be granted. For that right to be registered for someone other than the granting or transfer tax, the registrar shall refuse the registration requested. If it is not registered to any person for the said law and stating that it may not registrable under section 205 LH (inmatriculación) registrars to make preventive annotation request, which shall continue for such time as Article 96 states LH (they are 60 days from the date extended by 180 days, provided for just cause and under court order) [exception to the principle that the first domain registration is]. · principle of presumption of legitimacy or accuracy of the R. Prop. And for what it publishes, until proven otherwise: LH Article 1 establishes the principle of safeguarding and validity of entries in the registry, which will produce all its effects until it is adjudged to inaccuracy in the terms established in the Mortgage Law, which is why that principle means that all legal purposes, it is presumed that the property rights-registered exist and belong to their owner in the manner determined by the relevant entry. Similarly it is presumed that he has registered the domain, of property or real rights, has possession of them (this is a presumption “rebuttable”) as a result, impossible to bring any action inconsistent Domain of property or real rights registered in the name of person or entity, without first sue for annulment or cancellation of the corresponding registration. The application for annulment must be based on the reasons exhaustively expresses the LH when the harm to others (Case of 7 April 1981 of 7 December 1982 29 December 1995, etc …).
Top of public faith registration or assumption with no possibility of evidence against what is on the record:
this principle is manifested through the third party who in good faith for valuable consideration acquires any right of person who appears in the register with transmit power to be maintained in its acquisition once it has registered its right, but later set aside or resolve the grantor by virtue of causes that are not in the same record. The good faith of the third is always presumed, until proven that he knew the inaccuracy of the record. The buyers will not gratuitously enjoy more protection registrar of which had its cause or transfer (Article 34 LH: <<The third person who in good faith for valuable consideration acquires any right of person who appears in the registry with the power to transmit, retained in its acquisition, once you have registered their rights but later set aside or resolve the grantor by virtue of causes that are not in the same registry. The good faith is always presumed, until proven that he knew the inaccuracy the registry. Acquirers gratuitously enjoy no more protection than the registrar had his predecessor or transferor>>). Furthermore, the title deeds or other real rights over immovable property that are not properly registered or recorded in the R. Prop. No harm to third parties (Article 32 LH:
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Article 32 LH front facing title inscribed on a non-registered, while LH Article 34 enshrines the principle of public faith registration.