HIPOTECA EN MANO COMÚN.

Abstract

The problem has just recently been raised of the possibility of registering a mortgage featuring a plural group of lenders without specifying indivisible shares for each lender. This would be a Germanic type of community, a commonality of mortgage holders, in which each and every one of the lenders would be the holder of the mortgage right, and they would all have to act in unison to exercise their right. Opinion in mortgage doctrine is divided. Some authors feel that such a community may exist, while another sector denies that possibility. The partisans of allowing common mortgages to exist argue for the possibility on the basis that all that would be necessary would be to set up an appropriate foreclosure procedure. In addition, they point out that the mortgage is never the direct object of legal acts, attachments, etc., as such things pertain to the secured credit situation and are extended automatically to the security. These thinkers also say that it is not necessary to define shares in order to cancel the mortgage, either , because the mortgage remains in force, in its entirety, until the whole secured obligation has been paid off. Likewise, they argue that such mortgages would greatly facilitate the mortgage market. Another sector of doctrine, on the other hand, insists on the need to split rights into shares or percentages. They say that in Spanish law the Germanic community is exceptional and is accepted only in very few cases. There is also room for an intermediate posture, which would be to specify shares of holdership but to accord joint exercise of action.