Mortgage

1. DEFINITION

The mortgage is a security interest in Peruvian positive law rests on real estate and for its establishment is required to enroll in the Register of Premises which gives the right of pursuit that falls on the property.

In the Dictionary of the Spanish language by the Spanish Royal Academy defines the right mortgage real property taxes or ships, subjecting them to answer for the performance of an obligation or payment of a debt, ie, according to this dictionary the mortgage is a real right which taxes property and ships. In that same sense in not only the mortgage is on property.

To Josserand mortgage is indivisible collateral consisting of the involvement of an asset of the debtor to pay an obligation, without the constituent can be dispossessed at the time, and allowing the mortgagee to seize and sell such property, the maturity, whoever has it, to be paid with the price preference to other creditors. That is, this author does not require a mortgage on real property lies only, so mortgage with that definition also applies to personal property.

The Spanish Civil Code of 1889 defines mortgage in Article 1876 stating that the mortgage directly and immediately subject the property on which is imposed, regardless of its owner, the fulfillment of the obligation for whose security was established. This definition also states that the mortgage on real property lies only, so mortgage with the same also applies for the property.

To Planiol mortgage is a real security without depriving the owner it allows the creditor to sell it to maturity of the obligation, whatever hands it is to be paid with the price obtained, preferably to other creditors . This definition also states that the mortgage is on real property only, so the same warranty or real right that also applies to personal property.

The German Civil Code defines the mortgage in Article 1113 as a tax lien on a property by virtue of which those for whose benefit it provides may obtain certain sum of money to recover a claim recognized in their favor. With this definition the mortgage is on farms.

The French Civil Code defines the mortgage in Article 214 as the right real estate affects the performance of an obligation. This definition states that the mortgage is on property.

The Peruvian Civil Code of 1852 defined the mortgage as the tax is imposed on a property for another party, a credit or security of an obligation. This definition states that the mortgage is on property.

The Peruvian Civil Code of 1984 defines the mortgage stating that Article 1097 is affected by the real estate mortgage as security for the fulfillment of any obligation, own or a third party. This definition states that the mortgage is on property.

The Peruvian Civil Code of 1984 regulates the mortgage as a security that falls on property, for which the guarantee in question under the current regulations in the Peruvian government does not apply to property, but only applies to real estate.

Some scholars define the mortgage as the queen of the guarantees by the goodness of it, since it can not be hidden and the owner giving the security (owner) is in possession of the mortgaged property. However, considering the fact the same as Queen of the guarantees is not accepted unanimously by the doctrine.

To understand the mortgage requires not only knowledge of civil law (and specifically within this branch of private law rights and more accurately real security interests or rights in rem accessories), but other branches of law as a registry, notary, urban, mining, civil procedure, criminal, criminal procedure, taxation and other branches of law.

2. TYPES OF MORTGAGE

The mortgage may be of various kinds for which there are several classifications of the same.

The first being that rates mortgage mortgage in mortgage securities and real estate. The home mortgage is levied on real estate and chattel mortgage is levied on personal property. Of these two kinds of mortgages the best known, most used and consecrated in all jurisdictions is the home mortgage substantive. On the chattel mortgage can say that it is enshrined in the Spanish positive law. Which in some cases replaces the garment legal delivery.

The second classification of mortgages mortgage classifies the general and special. The first being levied on all real estate of the debtor and the second which rests only on a good or goods. Only the latter is governed by Peruvian law.

The third classification classifies the legal and conventional mortgage. The first being that arises by agreement and the second in the cases established by law. Both mortgages are governed by Peruvian law.

The fourth classification classifies mortgage mortgage regulated by the Civil Code and mortgage regulated by other laws. Also both mortgages are regulated by Peruvian law.

The fifth classification classifies mortgage mortgage mortgage registered and hidden. The first being recorded in running public records and the second runs not registered. The latter is not governed by Peruvian law.

There are other types of mortgage as judicial and unilateral, but are little known mortgage. In any case we must record that the second can be set up in the Peruvian law, ie by the fact that a unilateral mortgage can not be observed (suspend registration) or delete (deny registration) The operator shall submit registration applying for registration. Observation for the record that can be remedied, while the flaw can not be remedied.

3. RULES

The rules are Peruvian Peruvian Civil Code 1984, the Peruvian Civil Code of 1993, the registration rules and regulations of land registration and other rules governing the mortgage.

Under Spanish law, the rules are the Spanish Civil Code of 1889, the Spanish Mortgage Law, Civil Procedure Law and Regulation Mortgage mostly.

4. NATURE JUR? DICA

When studying a legal institution is necessary to determine their legal status to more serious studies on the legal institution studied.

In this sense the legal nature of legal institutions may be to be a contract, or a real right or a security or a guarantee or a legal person, among others.

For example, the sale is a personal right to be a contract, the rights antichresis and possession are real, and the bill of exchange, check, promissory note and bank certificate are securities.

The legal nature of the mortgage is to be a real right accessory, which is a right they have or can have people on the property.

Therefore the rule for the mortgage on Peruvian civil law is the book's real rights Peruvian Civil Code 1984.

However, not all authors agree on the legal nature study.

Some authors consider that it is appropriate to determine the legal nature of legal institutions, as this is extremely theoretical and applicative.

5. MORTGAGE IN COMPARATIVE LAW

The mortgage is regulated in Peruvian positive law, but it is necessary to determine if it is regulated by positive law of other States.

Performing comparisons determined that external legal in other states is also regulated the same.

For example, it is regulated in Germany, Argentina, Spain, France, Italy, among other states.

But the Peruvian government is a guarantee that backs all too often with security, except in relation to the privileges that detract from confidence to economic agents.

6. ACTORS IN THE MORTGAGE

Normally involved in the mortgage debtor (owner) and creditor.

But sometimes involving the debtor, creditor and also a third party owns the property.

However, at other times only mortgage is granted by the owner, provided the mortgage is called unilateral.

7. WELL FIELD OF MORTGAGE

You need to determine which assets may fall on different security rights.

Some property rights do not fall on all kinds of good, in this regard lies only mortgage on real estate.

The well field is a property mortgage, but under Spanish law, the mortgage can also fall on property, in which case is called a chattel mortgage.

8. CHARACTER? STIC MORTGAGE

When studying a legal institution is desirable to study their characteristics by which this can determine the most important aspects of the legal institution studied.

The characteristics of the mortgage are:

1) Right or guarantee real accessory.

2) relating to property. This feature does not exist in Spanish law, because the same if the chattel mortgage is consecrated, the consecration is not in the Peruvian law.

3) Establishment of the mortgage by the debtor or a third party.

4) No right or displacement of dispossession.

5) Specialty. This feature does not exist in the general mortgage.

6) Indivisibility.

7) Advertising. This feature does not exist in hidden mortgage.

9. REQUIREMENTS APPLY.

The condition of validity of the mortgage in the Peruvian law are set out in Article 1099 of the Peruvian Civil Code of 1984, which establishes the validity of the following requirements:

1) that affects the well owner or whoever is authorized to that effect according to law.

2) To ensure the fulfillment of an obligation or determinable.

3) The lien is fixed or determinable amount and the register of real property.

10. FORMAL TITLE MORTGAGE

There are two kinds of titles that are formal and title title material.

Formal title is the document that serves to prove the legal act or property right, ie, the formal title is the document containing the legal act or property right. In this sense they are a formal title deed, a registration form, a record of registrable property transfer or certified copies of a judicial or administrative records or private documents notarized signatures. Generally documents can be recorded in the registry offices are public instruments (according to the first degree registration or titling real public) and private documents by exception. Article 2010 of the Peruvian Civil Code of 1984 provides that the registration is made under the record title in a public, unless otherwise provided. That is, this article establishes the principle of genuine qualification.

Article VI of the introduction of the Regulations of Corporations of 2001 enshrines the principle Authentic Registration Titling in the following terms: "The entry will be made in recognition of public documents, arbitration or resolution of a private document in cases expressly provided for. Registration can be made under documents issued abroad, provided they contain acts or registrable rights under Peruvian law. Be presented in Spanish or translated into it and certified in accordance with the rules on the matter?.

Ie registrations extend credit to Public Instruments, and only exceptionally inscriptions may extend credit to private instruments, which is necessary for legal provision authorizing it.

Public Instruments are: Judicial Attorney, Administrative and Consular.

Title is the legal act material contained in the document, ie, the title material is the legal act or property right that is contained in a document. As such materials are titles: the purchase sales, donations, exchanges, mortgages, liens, foreclosures surveys, mortgage surveys, company formation, capital gains, changes in status, changes of name, change of corporate purpose, the appointment of manager or director, his revocation, dissolution, extinction, empowerment, the mandate contract, reversals of these, substitutions of powers, intestate succession, will, among other acts.

The formal title of the mortgage deed is (with some exceptions) from which transfers can take that are evidence, parts notarial deeds or ballots.

The record that it is common for parties be submitted to the notarial record, according to the law of notaries.

11. LEGAL MORTGAGE

In addition to conventional mortgage is the most common, there is the legal mortgage, which will develop below.

Article 1118 of the Peruvian Civil Code of 1984 provides that in addition to legal mortgages established in other laws, are recognized as follows:

1) The property alienated without its price has been paid in full or has been with money from a third party.

2) The Property for the manufacture or repair work or materials been provided by the contractor and the amount the client is obligated to pay.

3) The property acquired from a partition with the obligation to make repayments in cash to other co-owners.

In these three cases the most frequent is the first.

The legal mortgage is agreed but not establishing the court.

The aforementioned substantive Code Article 1119 states in the legal mortgage referred to in Article 1118 are constituted by right and officially enroll, under responsibility, simultaneously with the contracts from which they come. In other cases, the creditor's right arises from the registration of legal mortgages in the record. The persons for whom such mortgages are recognized, may require the provision of the necessary instruments for registration.

Article 1120 of the Code states that the legal mortgage can also be waived and assigned their rank relative to other legal and conventional mortgages. The waiver and release Antelo and can be made unilaterally.

Article 1121 of the Code provides that the substantive rules of Articles 1097 to 1117 and 1122 apply to legal mortgages where applicable.

Legal mortgage is that resulting solely from the law, which is a purely legal creation. It's called "tacit mortgage? French law (Josserand). The latter term is not useful, because we admit the existence of legal mortgage as it is registered, except that created by the Penal Code (Jorge Castañeda Eugene).

For Becque Planiol-Ripert and legal mortgage is one that unites full credit law, without requiring that the creditor has to make it express contract constitutes, formerly called "tacit mortgages?. Legal mortgages are established for certain classes of persons on account of their status or the nature of their relationships with those whose goods are affected by these mortgages.

12. CONVENTIONAL MORTGAGE

The conventional mortgage is constituted by agreement of the parties who are creditors and owners. It is characterized by the property owner is in writing and like all mortgages require registration of land. In case the bill is signed and the deed, in our opinion can be sued grant deed. With it, you may enter just the same.

And in this case the mortgage does not automatically enroll but forms at the request of an interested party, that is, in strict application of the registration of praying.

The Principle of Praying Registration is enshrined in the first paragraph of Article 2011 of the Peruvian Civil Code 1984, which states: "The Registrar shall consider the legality of the documents under which registration is sought, the ability of grantors and the validity of the act, so that results from them, their background and seats of public records.?

The conventional mortgage usually enforces a mutual contract or bank loan.

13. COURT MORTGAGE

The judicial mortgage is granted to a creditor in the execution of the sentence.

14. TERMINATION OF MORTGAGE

Article 1122 Civil Code 1984 states that the Peruvian mortgage just by:

1) Termination of the obligation guaranteed.

2) Cancellation, termination or settlement of that obligation.

3) written waiver of the creditor.

4) Total destruction of property.

5) Consolidation.

15. MORTGAGE REGISTRATION

There are various registry acts among which we quote the sale, donation, exchange, freezing, incorporation of companies, among others.

Also considered as an act registrable mortgage.

The mortgage on the Peruvian State is entered in the Register of Premises.

Under Spanish law is part of the chattel mortgage on some property records and registers of guarantees.

16. PRIORITY OF A MORTGAGE TITLE

The priority of the mortgage title gives the date, time and second filing to registration, provided that it is registered.

The mortgage has priority over others by the date of its entry in the Register, in this sense if an area runs inmatriculado and have two separate titles containing mortgage or premium overrides the title that first enter the registration, provided they enroll . Income for the record that the registration of documents or securities which registration is sought are channeled through the journal, which usually takes in information systems and at the end of the day they are printed.

Another assumption is when a property inmatriculado runs and two titles are one containing a sale price and the other containing a mortgage constituted by the registered owner, in this case if you register first transfer of ownership following the sale, the mortgage may no longer apply. It forms only one of the two titles. That is, in this case the purchaser acquires the property without a mortgage.

But if this proposed course is part of the mortgage first and then the transfer of ownership, are part of both titles. And the acquirer acquires the property with a lien (if there are no liens registered or recorded over, as if any such is acquired well even with these charges, which may be liens or mortgages, among other charges, unless In the case of an auction or judicial adjudication in which case it is acquired unencumbered, as the Judge orders the repeal of all taxes that despite the good, except for the annotation injunction request, pursuant to paragraph 2 Article 739 of the Peruvian Civil Procedure Code of 1993) that is the mortgage.

That is, determining the date of registry access.

17. MORTGAGE RANGE

On the same property can provide various mortgages, which is necessary to determine that between them there preference among them which is called the range of the mortgage.

In such a case must determine that the range of the mortgage is determined by the registration of land.

For example if there are four registered mortgages the date of entry into the registry that determines the range of the mortgage.

It determines the range of the minutes the date nor the date of the deed, not the date of the witness, party or ballot.

It should be noted that on the same property can register any number of mortgages, but in practice usually only runs a game registry registered a mortgage.

To understand the range of the mortgage is first necessary to study the range of priority registration.

Beginning Range Priority Registration is enshrined in Article 2016 of the Peruvian Civil Code of 1984 which states: "The priority at the time of registration determines the preference of the rights granted by registration?.

To Top Priority Registration Preference Principle is also called Priority Registration Status, Priority, or Priority Banding Compatible.

This registration principle is generally applied in the case of taxes and measures, for example when two mortgages, the mortgage has priority was registered first mortgage against the following enrolled, regardless of the dates of the deeds nor the minutes. In that case the advantage is the mortgagee who managed to register first title.

When applying the principle of rank priority registration are inscribed two mortgage presented for registration, but one of them prevails over the other.

18. REGISTRATION HOLDER

There is the record owner in the property records in that sense there is the registered owner of land registration (which includes the registration of real property, registration of farm and rural properties special section), registration of vehicle ownership, registration of companies whose capital is divided into shares, registration of fishing vessels, vessel registration, registration of ships, aircraft registration, among others.

The registered owner is listed in the register as owner, in this sense is usually the registered owner that the property mortgage, unless the mortgage is this the title of acquisition of new owner, in which case the mortgage that is not the registered proprietor, but the new purchaser or owner with the inclusion of this title will become the new registered owner.

19. Advertising Principles

There are several principles in each registry system registry, among which we cite the principle of priority, legality, chain of title, Money, among others. Registration principle also considered the principle of publicity, which is legislatively enshrined in Article 2012 of the Peruvian Civil Code of 1984 and Article I of the introduction of the General Regulations of the Peruvian Public Registry.

In some special registration regulations also legislatively enshrined this principle registry.

Article 2012 of the Peruvian Civil Code of 1984 states that it is assumed without proof to the contrary, that any person has knowledge of the contents of the inscriptions.

20. REGISTRATION PARTY IN GOOD FAITH

Under Article 2014 of the Peruvian Civil Code of 1984 may be formed whenever there third registration the following requirements:

1) That the purchase from the registry who appears with powers to issue the document.

2) That is an acquisition for consideration.

3) That the registration of the acquisition on record.

4) It is acting in good faith and did not know of the inaccuracy of registration.

The third registration is not equal to the third civil, because the first is protected by the principle of public faith registration registration. While the second is the person who is not involved in a contract, for example if A with B conclude a purchase agreement is considered to be civil about this third contract C.

The third registration does not need the same requirements in all registration systems, as such requirements vary in different systems registration. For example, some states do not require consideration to be be considered as such. What it requires the right under the above standard.

The registry law protects the third party registration.

21. REDUCTION AND THE MORTGAGE AMPLICION

The mortgage can be reduced and extended in the amount, which is necessary to register in the Register that such acts are also constituents such as the registration of mortgages.

22. FACTORY

The factory construction is that you can enroll in the registry of land, that is, declarative registration of the building on which the mortgage may also fall.

There are two cases of registration of the factory are factory declaration and verification of the factory, the first course when building the register at the request of the engineer or architect, builder and the second case when the register at the request of another engineer or architect, than the builders.

23. E divestiture MORTGAGE

If a mortgaged property and runs independent from him some land, the mortgage also becomes registered in the registration items of the new independent properties, ie, does not affect the mortgagee with the independent.

We need to state that if a good run taxed in the record with a mortgage up to the sum of five hundred thousand dollars and the same two goods become independent in the three tabs (which are the original form and two runs where the independent registered or dismemberment) registered the mortgage runs up to the sum of five hundred thousand dollars. For the record that the record does not verify the value of the property for purposes of classifying registry when the mortgage rate, but only until the amount is established, which is a requirement of the constitution of the mortgage. For example if the property appears in the record that was acquired by the sum of fifty thousand dollars is possible without any problems you sign a mortgage for the amount of one million dollars.

24. Foreclosure

In the Peruvian judicial mortgage is executed, which increases the costs of implementation.

It is necessary to modify the Peruvian Civil Code of 1984 as well as the 1993 Peruvian constitution to allow the mortgage is executed extrajudicially.

The record that the proposals to reform the Peruvian Civil Code of 1984 published in the Official Journal El Peruano on 11.04.2006 is stated that that code should be reformed in reference to a mortgage, meaning that the execution of the same can also be extrajudicial.

In Spain they can foreclose out of court, pursuant to Article 1858 Spanish Civil Code of 1889 and section 129 of the mortgage law.

This method of disposal of mortgaged property, for breach of the obligation to guarantee, is made in Spain by a notary, with the formalities established by the Mortgage Regulations, and requires as a precondition that the mortgage deed of incorporation expressly agreed the extrajudicial sale of mortgaged property, the debtor shall also designate a person to represent him in his day, in the sale of the property and must also be stated the appraised value of the property to serve as such in the auction (art . 234 Mortgage Regulations).

25. Judicial sale of the mortgaged property AND AWARD

The mortgaged property can be finished and the award may be requested of the mortgaged property to the creditor. As long as the process in the Peruvian law is justice.

26. THE MORTGAGE RETROPRIORIDAD

When the range has been separated from the mortgage with notary block, and then sign the mortgage, it is considered registered from the date of entry of notarial block.

27. EXCLUSIVE DOMAIN third party

When the well runs enrolled is easier to get a court to lift injunction.

When the well runs inmatriculado and translations are registered domain is easier to win an exclusive third-party process domain.

But if the mortgaged property is transferred to a non-exclusive third-party thrives domain, the mortgage on the property is persecutory. And running against someone who appears as owner in the Register of Premises.

That is, if registered on the site runs a mortgage and to register a transfer of ownership does not succeed a third party property, formerly known as exclusive third-party domain.

28. REVOCATION OF MORTGAGE

The Peruvian Civil Code contains provisions that punish inefficiency of the legal act, among which are the rules governing the nullity and voidability of the act, rules that also apply to contracts and property rights.

That is, you can declare the nullity relative or absolute of a legal act, as the grounds for invalidity set out in the Peruvian Civil Code 1984.

In some cases the real rights can be declared ineffective.

The mortgage is a property right and as such seems not attackable, however, nothing prevents or cancellation declared invalid by a court of law.

That is, the mortgage may be declared ineffective, even if it recorded in the log run.

29. CONCLUSIONS:

After having developed the most important aspects of the mortgage, we make conclusions in the following terms:

1) The mortgage on the Peruvian government rests only on property, which is consistent with the majority of foreign law.

2) The mortgage on the Spanish government lies about some real estate and personal property, so in that state the mortgage is of two kinds that are the home mortgage and mortgage securities.

3) In the Peruvian barely processed annulment of mortgage processes.























































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