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Resolution Of 3 October, 2011, Of The General Direction Of The Registers And Notaries, On Location And Representation Of Heritage Lying To The Effect Of Practice Registration Records In Legal Proceedings Against It.

Original Language Title: Resolución de 3 de octubre de 2011, de la Dirección General de los Registros y del Notariado, sobre emplazamiento y personación de la herencia yacente al efecto de practicar asientos registrales en procedimientos judiciales contra ella.

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Resolution of the binding consultation formulated by the College of Property, Commercial and Property Registrars on the placement and personation of the heritage lying to the effect of practicing registered seats in the judicial proceedings against her.


By letter dated February 17, 2011, with entry into this Steering Center on March 9, 2011, the College of Registrars of Property, Mercantile and Furniture, under the provisions of the Article 103 of Law 24/2011, of 27 December, of Fiscal, Administrative and Social Order Measures, a binding consultation on the placement and personation of the legacy of the estate as defendant in judicial proceedings and on whether it is or not the appointment of a judicial defender to represent and defend his interests. Considers that there is a discrepancy between the interpretative postulates defended by the General Directorate of the Registers and the Notary and the judicial decisions that are placed in verbal judgments against the classification of The Court considers that the most recent case-law of the Court of Justice (cited in the consultation letter) considers that " the scope of the registrar's qualification in relation to documents issued by judicial authority would not cover the examination of the Compliance with the Law of the processing of the site of the estate as defendant, procedure a procedural document that escapes the assessment of the congruence of the mandate with the procedure or judgment in which it was issued. "

Law Fundamentals

Having regard to Articles 24, 117 and 118 of the Spanish Constitution; 6.4, 7.5, 540, 790.1, 791.2.2. º, 797 and 798 of Law 1/2000, of 7 January, of Civil Procedure; 18 and 20 of the Mortgage Act; 76 to 78, 100 and 166.1 of the Regulation Mortgage; the Sentences of the Constitutional Court 109/1999 of 14 June and 185/2001 of 17 September; the Sentences of the Supreme Court Chamber First of 7 April 1992, 11 April 2000, 7 July 2005 and 12 June 2008; and Resolutions of the Directorate-General for Registers and the Notary of 22 January 2003, 25 June 2005, 24 June 2005 February, 5 July and 18 November 2006, 21 February 2007, 9 June 2009, 27 July 2010 and 10 and 22 January 2011, 3 May 2011 and 9 July 2011 (1st).

1. This Steering Centre has addressed the issue of consultation in repeated binding pronouncements, which have followed a criterion ratified by the doctrine of the Supreme Court (see resolutions and judgments cited in the "Vistos"). What is reproduced below is but reiteration of this doctrine.

2. The constitutional principle of the judicial protection of the rights and interdiction of procedural defensiveness limits the effects of the res judicata to those who have been party to the procedure. In this sense, the principle of the register of the following, which is nothing but a transfer of the proscription of the defensiveness, prevents the possibility of making a place in the Register for judicial decisions that could lead to a patent infringement of the holder's patent. Register. This is the reason why, Article 100 of the Mortgage Regulation (in line with Article 18 of the Act itself) extends the registration mark against legal proceedings to the jurisdiction of the judge or tribunal, the adequacy or congruence of its judgment with the procedure or judgment in which it was given, the extrinsic formalities of the document presented and the obstacles arising from the Register, all limited to the exclusive effects of the registration.

This principle of interdiction of procedural defensiveness requires that the registrant affected by the act be registered, when the authentic consent is not established, has been a part or has been, at least the possibility of intervention, in the determining procedure of the seat. Thus, it is explained that, even if it is not the responsibility of the registrar to describe the personality of the acting party nor the passive legitimization from the procedural point of view appreciated by the judge nor the fulfillment of the procedures followed in the judicial proceedings, their qualification as judicial proceedings if they must, in any case, be able to achieve the fact that those who are protected by the Registry have been legally placed in the proceedings.

Therefore, this Steering Center understands that the qualification by the registrars of the fulfilment of the successive tract does not mean to appreciate an eventual defective treatment (which is not the responsibility of the registrar to determine), but a inadequacy, in this case, between the relapse resolution and the procedure or judgment in which it should be given, which is subject to which it reaches the authority of qualification of the registrar, in accordance with Article 100 of the Mortgage Regulation.

As to the application of this doctrine in the realm of the lying estate, it is true that this Steering Center had demanded, in order to be considered completed the successive tract (cfr. Article 20 of the Mortgage Act and 166.1 of the Mortgage Regulation by analogy), the judicial appointment of an administrator of the yacrent estate, in court proceedings against indeterminate heirs of the registrant. And this demand had been justified precisely in the fact that the Registrar must point out as a defect that prevents the registration of the lack of intervention in the procedure of the registrant, since the contrary would cause him to be defenseless-as has been (vii), in violation of the constitutional right to effective judicial protection (Article 24 of the Spanish Constitution).

However, it has been clarified later, in order to bring this doctrine into line with the case-law of the case (see for all Resolutions of 27 July 2010, 10 and 22 January and 3 May 2011, among others). In the case of the Court of Justice of the European Union, the Court of Justice of the European Court of Justice of the European Court of Justice of the European Court of Justice of the European Union no such appointment has been verified and therefore has not been directed against the claim, it should be limited to those cases where the appeal to the indeterminate heirs is purely generic and obviate when the claim has been directed against certain persons, as possible heirs, and provided that the documents submitted prove that the judge has considered sufficient the passive legitimation of the lying estate.

3. Law 1/2000 of 7 January of Civil Procedure, in its Articles 790 et seq. requires the adoption of measures to ensure the inheritance of inheritance in judicial procedures for the division of inheritance-including the appointment of a Judicial administrator ex Article 795 of the Civil Code-when the deceased is deceased, there is no evidence of the existence of a will or of his relatives. It therefore attributes-in the assumptions of lying inheritance-great importance to the possibility or non-intervention of possible calls to inheritance. Therefore, it seems reasonable to restrict the requirement for the appointment of a judicial administrator, to the effect of the registration of the successive tract, to the cases of claims to be ignored, but to consider the placement made sufficient to persons determined as possible calls to inheritance.

4. It is the case-law itself which endorses this interpretation that in order for the passive legitimation to be properly established from the perspective of the successive tract, it is necessary at least that the application be brought against a call the inheritance that can act in the interest of others and that the generic appeal is not sufficient-if the appointment of a judicial administrator is necessary.

While in order to take action for the benefit of the lying estate it is necessary to prove the status of heir (see Judgment of the Supreme Court of 11 April 2000), to bring actions against the inheritance It is sufficient for the site to have an acting power in the process on behalf of the absent or unknown.

Thus, the judgment of the Supreme Court of April 7, 1992, in a case of vindicatoria action directed against only one of the heirs, stated that " the defect of the placement practiced in the person of a single person cannot be discussed. the heir of the defendant and to give this to the other heirs "unknown"; without it being accredited, not even to be alleged, that the emplaced had any power to act in this process in the name of the absent or unknown ". In the light of the situation, the Commission considered that the situation in the present case was incorrect, and that the Court of State held that the Court of The site omitted the final outcome of the dispute would have been the same. "

5. Therefore the placement in the person of an executor or of the judicial administrator of the lying estate shall comply with the successive tract. But such a location shall only be an inexcusable requirement when the appeal is generic, addressing the claim against the ignored heirs. It will not be when a possible heir has been sued who can act in the process on behalf of the absent or unknown.

What cannot be said is that there is no qualification from the perspective of the successive tract, nor that the mere generic appeal to the ignored heirs is sufficient when it is possible to identify those who are possible. heirs and has not been appointed as a judicial administrator of the lying estate.

Madrid, October 3, 2011. -Director General of the Registers and the Notary, M. Alcalá Díaz.