HIPOTECAS EN MANO COMÚN.

Abstract

Spanish law admits «Germanic» coownership on any assets, rights or estates. Germanic co-ownership may result from a legal provision, a practice of general application or an agreement. A mortgage for the benefit of various mortgagees may be structured under a Germanic co-ownership (especially in the case of a floating mortgage). A Germanic floating mortgage may be set up as a security of a variety of credits or obligations, even if no such Germanic co-ownership exists over any, some or all of the secured credits or obligations. Any such mortgage may freely access the land registry despite the absence of determination of the share or interest of each of the mortgagees in the mortgage. The lack of determination of each mortgagee's interest or share does not prejudice or otherwise impairs any third party's rights. It is lawful (and usual) that the parties to a floating mortgage set up within a global restructuring process are interested in structuring the security as follows: (i) the maximum mortgage liability is not broken down into the various secured obligations (on the contrary, the entire secured amount benefits any and all of the secured obligations); (ii) in the event of repayment or termination of any secured obligation, the entire mortgage remains in place for the benefit of the remaining secured obligations; (iii) the mortgagees (acting unanimously) will be entitled to enforce the mortgage (or any other mortgagee's rights).