Real property rights, real guarantees, mortgage guarantees… If you are thinking about buying a home, all of these terms have surely appeared in more than one conversation with financial institutions, legal advisors and family members. But do you know what each concept refers to?
Although they are very similar ideas, real property rights and mortgage guarantees are not synonymous and at Hipotecas.com we explain what each one consists of.
What are real security rights?
The origin of real rights of guarantee is found in article 1,911 of the Civil Code , referring to the universal patrimonial responsibility of the debtor , which establishes that "the debtor is responsible for the fulfillment of obligations with all his assets, present and future."
However, this principle does not always guarantee that the creditor will receive what is owed and, therefore, the legislator introduces the figure of real rights of guarantee, with which the position of the creditor is strengthened against the debtor.
In this sense, the guarantee is understood as "any reinforcing measure that is added to a credit to ensure its satisfaction , attributing to the creditor a new subjective right or new powers, such as the retention of the thing", according to Luis Díez-Picazo and Antonio Gullón in Sistema de Derecho Civil .
In this way, through real rights of guarantee, the creditor obtains the power to go against the encumbered asset , whoever is the possessor of the same, in case of non-compliance with the obligation agreed by the debtor. As Tirant Lo Blanc points out in Real Rights of Guarantee , “real rights of guarantee can be defined as those rights over another's property, accessory to a credit, by virtue of which one or several specific assets, movable or immovable, are especially and expressly subject to the satisfaction of the credit whose fulfillment they guarantee through the possibility of realizing the value of such assets.”
Characteristics of real property rights of guarantee
Consequently, real property rights of guarantee have the following characteristics :
- Its function is to reinforce or ensure that the debt will be satisfied .
- These are indivisible guarantee rights, that is, they remain intact, even if the guaranteed obligation is reduced.
- They are legal figures that are accessory and inseparable from the credit they guarantee.
- They fall on the creditor's alienable property.
- The asset linked to the real right of guarantee must be the property of the subject who encumbers it.
- They are effective erga omnes and with preference for collection, that is, the creditor can claim the encumbered property from anyone who owns it and regardless of the number of creditors who have the right to be satisfied on it, provided that they are not preferred.
Types of real property rights
Within the real guarantees, the Civil Code includes three different types :
- The pledge , in which the debtor delivers to the creditor - or to a designated third party - a movable property until the agreed obligation is completely satisfied.
- Real estate mortgage , where the asset encumbered as collateral is a real estate asset. However, unlike a pledge, a mortgage does not entail a transfer of possession, which remains in the hands of the debtor as long as he does not fail to fulfill the obligation, although it does require registration in the Property Registry .
- Antichresis , a real right of guarantee similar to a pledge, but which falls on real estate, granting the creditor the right to receive the fruits of the property, which will be computed in the debt (interest and capital, in that order).
However, real rights of guarantee have subsequently been extended. Specifically, the Law of 16 December 1954 on Chattel Mortgage and Pledge without Transfer of Possession , incorporates two new legal figures:
- Chattel mortgage , in which the lien falls on specific and easily identifiable movable property. It does not require the transfer of the property, but it does require constitutive registration in the corresponding Registry.
- The pledge without displacement , which focuses on certain movable assets - exhaustively listed in the regulation itself - and does not entail the transfer of possession to the creditor, but rather its constitutive registration.
Real right of guarantee vs. mortgage guarantee
Therefore, although they are similar terms, real property rights and mortgage guarantees are not the same , but rather this second concept would be one of the types of guarantee found within the first.
That is to say, the mortgage guarantee refers to the right granted over a property to a person or entity with whom a debt or commitment is contracted , so that, in the event that said debt is not satisfied or the commitment is not fulfilled, they have the possibility of realizing the property to recover the money lent.
Consequently, the mortgage guarantee can only be produced when a real estate mortgage or anticresis contract is signed , being completely excluded from the other three types of real guarantees, since it affects movable property. Now, while in the mortgage, the creditor will obtain the property of the property in case of non-compliance, in the anticresis, the mortgage guarantee is limited to