The mortgage is a real estate guarantee that assures fulfillment of obligations without dispossession of the debtor. It requires registration for publicity and is indivisible.
A mortgage is a security interest that is granted exclusively on real estate and is constituted for the purpose of securing the performance of one or more obligations, either its own or those of third parties. It is a non-possessory security interest; that is, it does not imply the dispossession of the debtor. The security in this guarantee is not given through the possession of the property, but by means of the legal assignment of the property through registration, which allows its judicial sale and preferential collection in the event of noncompliance with the guaranteed obligation.
The general regime of the mortgage is provided for in the Civil Code, in the following terms:
Article 1097.- “By mortgage a real estate is affected in guarantee of the fulfillment of any obligation, its own or of a third party. The guarantee does not determine the dispossession and grants the creditor the rights of pursuit, preference and judicial sale of the mortgaged property”.
One of its main characteristics is its accessory nature. The mortgage is an accessory right to the credit. In fact, such guarantee is constituted with the purpose of assuring the fulfillment of an obligation. Both go together: Credit (principal) and guarantee (accessory). The mortgage thus depends on the obligation it secures, since a guarantee is justified by the need to see a credit satisfied. Likewise, according to numeral 3 of article 1099 of the Civil Code, one of the requirements for the validity of the mortgage is that the lien be registered in the Real Property Registry.
The publicity of the mortgage implies that it is a right of registration, because in the absence of displacement of possession in favor of the mortgagee, third parties require a mechanism that allows them to know of the existence of the lien.
On the other hand, the mortgage is indivisible. This is expressly provided for in Article 1102 of the Civil Code, according to which “[t]he mortgage is indivisible and subsists in its entirety on all mortgaged assets”. This character may be appreciated both with respect to the mortgaged property and with respect to the secured credit. In the first case, regardless of the division of the mortgaged property, the mortgage subsists in its entirety on each of the divided parts. Each portion of the property is liable for the totality of the secured obligations, without its separation prejudicing the creditor’s right.
Once the mortgage is registered, and upon compliance with the obligation, the same is extinguished, for which reason the mortgage must be lifted and its registration in the Public Records must be cancelled. It is understood that the debt was cancelled.
The reason is that this process supposes to transmit to the Registry of the Property the extinction of the mortgage charges of the property after the payment of the mortgage. Thus, if in the future you want to sell the property or to constitute a second mortgage, for example, the registry information will reflect the real situation of the property.
In order to lift the mortgage, first a minute must be drawn up stating the bank’s or lender’s willingness to lift the mortgage. The minutes are issued by the bank, the lender or the individual.
Then, the interested party will go to a notary to incorporate the minutes in a Public Deed, which, among other things, must have the signature of the creditor (bank or lender) as proof of its willingness to lift the mortgage.
In addition, it must indicate the registry entry (volume and page, file or electronic entry) where the mortgage is registered.
With the signature of the public deed, the notary issues a notarial report for its presentation to the registry. This step involves paying the registry fee to lift the mortgage.
Dr. Rina Bendezú Hernández
Lawyer - Registry, Notary and Civil Area
