THE CONSEQUENCES OF PUBLIC REGISTRATION AND NON-REGISTRATION IN RELATION TO THE CANCELLATION OF A MORTGAGE LOAN.

Abstract

The accessory nature of the mortgage regarding credit and the principle of register public faith seem to contradict each other in cases where a mortgage which is void or extinguished but inscribed in the Register is transferred. The accesority, and the fact that land Register covers only property rights, seems to prevent a third party from acquiring a nonexistent mortgage a non domino, because the public faith does not refer to the obligation. However, Article 144 of the Spanish Mortgages Act, adopting a non-oppositional system, extends the effects of land registration to the existence of the credit paid or extinguished but not canceled in the Register. And the Article 1526.2 of the Spanish Civil Code applies the same rules in cases of unregistered transfer of a mortgage, where the first and unregistered transfer becomes unenforceable against the second transferee whose acquisition has entered in the Registry.