The theory of the title and the way and conflicts of real estate acquisitions. Critical reflection on the doctrine of Room 1 of the Supreme Court when interpreting and applying articles 1473, paragraph 2, of the Civil code and 34 of the Mortgage Law

Abstract

This work proposes a critical revision of the consolidated doctrine of the Supreme Court regarding the protection of the so-called third party mortgage. And it is that from the judgment of the Plenary, of the civil chamber of the Supreme Court of March 5, 2007, the jurisprudential doctrine regarding the concept of third party mortgage and the debated issue of the attribution of property to the second acquirer when the acquisition was registered in the Property Registry and even if there was a consummate prior transmission but not registered. By means of this position, our High Court faces a classic issue in the civil-mortgage sphere that, in the opinion of this author, deserves revision, based on the aforementioned resolution, as well as in subsequent ones that follow the criteria declared by it, already A body of jurisprudential doctrine in this regard, the First Chamber of the Supreme Court established doctrine on the concept of third party mortgage, responding to a legal question that has sustained a prolonged doctrinal and jurisprudential debate around article 1473, paragraph 2, of the Civil Code, which is the maintenance of the second acquisition, registered in the Property Registry, despite the existence of a previous transmission «consummated» in time, well in advance of the second, but not registered. This work recovers the arguments then used and prolonged maintained by the Supreme Court, to proceed with its criticism, participating in the result agreed in the ruling, which attributes ownership of the property to the owner who registered its acquisition, but without sharing the reasoning followed by the room to displace from the real estate ownership who, gathering title and mode before the registrant, did not register.