The laws are changing little by little and that allows something that could not be done before to be done now. The problem is that we don't always know how to do it. For example, focusing on the subject of mortgages, Do you know how to request the lifting of the mortgage due to expiration?
If it is something that interests you but you do not know what requirements must be met, what the steps are and in what situations you cannot request it, then we are going to solve those doubts.
What is the lifting of mortgage by expiration
Also know as cancellation of mortgage due to expiration, is a condition that grants the Civil Code according to which a person can request that a mortgage be canceled alleging that it has expired.
In fact, it is governed by CC article 1964 (Civil Code) which reads as follows:
"1. The mortgage action prescribes after twenty years.
2. Personal actions that do not have a special term prescribed after five years since the fulfillment of the obligation can be demanded. In the continued obligations to do or not to do, the term will begin each time they are breached.
What concerns us in a mortgage lifting due to expiration would be section one, in which establishes a period of 20 years. If 20 years have elapsed, you can request that cancellation.
Now, we must also take into account Article 82 of the Mortgage Law, what does it say:
«The registrations or preventive annotations made by virtue of a public deed, will not be canceled except by sentence against which no appeal is pending., or by another deed or authentic document, in which the person in whose favor the registration or annotation was made, or their heirs or legitimate representatives, gives their consent for the cancellation.
They may, however, sbe canceled without said requirements when the registered or annotated right is extinguished by declaration of the Law or thus results from the same title by virtue of which the registration or preventive annotation was made.
If the registration or annotation is constituted by public deed, its cancellation proceeds and the person to whom it harms does not consent to it, the other interested party may demand it in ordinary proceedings.
The provisions of this article are understood without prejudice to the special rules that on certain cancellations are included in this Law.
At the request of the registered owner of any right over the affected property, the cancellation of resolutory conditions may be made in guarantee of the deferred price referred to in article 11 of this Law and of mortgages in guarantee of any kind of obligation, for which a specific term of duration had not been agreed upon, when the term indicated in the applicable civil legislation for the prescription of the actions derived from said guarantees has elapsed or the shortest that for these purposes had been stipulated at the time of its constitution, counted from the day on which the provision whose fulfillment is guaranteed should have been paid in full according to the Registry, provided that within the following year it does not result from the same that they have been renewed, interrupted the prescription or duly executed the mortgage.
In other words, 20 years must always have elapsed from the end of the payment term that is in the deed. Plus, it will be the holder to register who must do it.
This means that you can't cancel a mortgageAlthough more than 20 years have passed, without having been "settled". It is not valid to "escape" from paying the mortgage payments, but in a free process to record that this real estate is free of charges.
What are the requirements to be able to raise a mortgage for expiration
In view of the foregoing, there is no doubt that there are two mandatory requirements that must be met to request the lifting of the mortgage due to expiration. These would be:
- let there be after 20 years after the mortgage has been paid.
- whoever requests it be the owner or the heirs of this.
Actually, when a mortgage is signed, the person has to pay the total of that debt and, when it succeeds, it is extinguished. But in reality, it is still recorded in the Property Registry because that mortgage is not automatically canceled there, but rather, for them, it is still there. For this reason, a procedure that many do not do is to cancel the mortgage when they finish paying the mortgage loan. That is, carry out a registration cancellation of the mortgage in the Registry.
This procedure is not mandatory, but it does become essential if what you want to do is sell it or remortgage.
Now, in the case of a mortgage cancellation due to expiration, the process is for free as long as the requirements are met.
Procedures for lifting a mortgage due to expiration
If you are clear that you meet the requirements to request a mortgage lift due to expiration, then the deadlines you must meet are the following:
Go to the Land Registry
there, you must request an instance, or download it from the Internet as it is available.
If the holder cannot attend in person, he can appoint a person to act on your behalf. To do this, this instance must be signed by the owner himself and must also be accompanied by an authorization and legitimation of the signature in a notarial manner.
Therefore, the best (and cheapest) is to go in person. Of course, bring your ID so that the registrar can verify your identity.
Fill out a standard form
In the Registry it is possible that they give you a document in which it is declared that 21 years have passed (20 which are established by law plus one additional) of that mortgage action. And that the mortgage is extinguished but not cancelled.
Do they ask for documents?
Depending on the registrar, or the internal procedures that are carried out in the Land Registry where you go, documents may be required where you can certify that the mortgage has really been satisfied.
This can be done with the settlement document of the Tax on documented legal acts.
It would also be good provide other documentation related to the end of the mortgage. In this way, you have a better chance that the resolution will be finished soon.
As you can see, requesting the lifting of the mortgage due to expiration is not difficult to do, but you do have to comply with those requirements and procedures to achieve it. Do you have doubts? Ask us!