The land registry protection of the third party in cases of double registration

Abstract

The double registration of a property presents notable difficulties when it affects different subjects who dispute its ownership. The article 209 of the Mortgage Law (LH) establishes a  proceedings, in charge of the registrator, to try to resolve the duplication of registry entries and, if this cannot be done, the corresponding declaratory process must be used.

The jurisprudence adopted the doctrine of the prevalence of the registration of the property whose ownership was in better condition according to pure Civil Law, with suspension of all mortgage principles, since two people appeared as registered owners of the same property. The question to be resolved was whether it was possible to apply the principle of public trust when only one of the litigants had the status of third mortgage of article 34 LH.

The negative thesis claims that if the registration of the third mortgage of article 34 LH were considered to be in better condition, the remaining registered holders would definitively lose their right, even if their registered titles were civilly preferential, which would go against the security of all registered holders.

In contrast, the affirmative thesis was intended to be consolidated in the Supreme Court judgment (Civil Chamber) of May 19, 2015 that established that the reciprocal neutralization of mortgage principles, including that of public trust in the Land Registry of article 34 LH, and the application of pure Civil Law, cannot be applied when the quality of third party mortgage is recognized in only one of the registry holders in dispute, and this is in order to the security of the registered real estate traffic.