Real Estate Mortgage (Hipoteca Inmobiliaria)
The Real Estate Mortgage is a real right of guarantee that is constituted on a property owned by the mortgagee and that grants the creditor bank expropriation power, effective against third parties. The creditor acquires a real right that limits the right of the owner of the property.
A mortgage is a real right and as such it attributes to its beneficiary a situation of certain power over the mortgaged property and has effectiveness against all (in Latin, erga omnes). It is an ancillary right, which implies that it is linked to the obligation it guarantees and ensures.
It falls on the immovable property. The constitution of the mortgage right does not imply the dispossession of the mortgaged property, which remains in the ownership and possession of the mortgage debtor.
The Mortgage guarantee is indivisible. It remains in full, as long as it is not cancelled, even if the guaranteed obligation is reduced.
When the debtor, in addition, by virtue of the universal patrimonial responsibility responds with all his present and future assets.
Essential requirements to grant a mortgage guarantee (CC art.1857):
a. Must be constituted to ensure compliance with a principal obligation.
b. The mortgaged property must belong to the person who mortgaged it, who must be entitled to the free disposal of their property.
c. That the mortgage is constituted in public deed. From this moment it has effects for the grantors and their assignees.
d. That the mortgage public deed is registered in the Land Registry. Now, its effects extend also to third parties from registration.