#Real #estate #mortgage
Real estate mortgage
Art. 2124. Only the following property may be the object of a contract of mortgage:
(2) Alienable real rights in accordance with the laws, imposed upon immovables.
Nevertheless, movables may be the object of a chattel mortgage. (1874a)
> Contract whereby the debtor secures to the creditor the fulfillment of a principal obligation, specially substituting to such security immovable property or real rights over immovable property which obligation shall be satisfied with the proceeds of sale of said property or rights in case the said obligation is not complied with at the time stipulated
> Real, accessory, unilateral and subsidiary contract
POSSESSION OF PROPERTY MORTGAGED
> As a general rule, it is retained by the mortgagor
> The mortgaged property is only subjected to a lien by the mortgagee but ownership is retained by the mortgagor
PAYMENT OF INTEREST ON MORTGAGE CREDIT
> With regard to fruits or interest, the mortgagee shall be subject to the obligation of an antichresis creditor
SUBJECT MATTER OF MORTGAGE
> Immovables and alienable real rights over immovables
FUTURE PROPERTY CANNOT BE OBJECT OF MORTGAGE
> Future property cannot be the object of a contract of mortgage
> A stipulation however subjecting the mortgage lien, properties which the mortgagor may subsequently acquire, install, or use in connection with real property already mortgaged belonging to the mortgagor is valid
Art. 2125. In addition to the requisites stated in Article 2085, it is indispensable, in order that a mortgage may be validly constituted, that the document in which it appears be recorded in the Registry of Property. If the instrument is not recorded, the mortgage is nevertheless binding
between the parties.
The persons in whose favor the law establishes a mortgage have no other right than to demand the execution and the recording of the document in which the mortgage is formalized. (1875a)
ESSENTIAL REQUISITES OF A MORTGAGE
1. To secure the fulfillment of a principal obligation
2. The mortgagor should be the absolute owner of thing mortgaged
3. The mortgagor should have free disposal of the thing
4. When the principal obligation becomes due, the thing mortgaged may be alienated to secure payment
5. For a mortgage to be validly constituted and to prejudice third persons, the mortgage should be recorded with the Registry of Property
NO VALIDLY CONSTITUTED MORTGAGE IF THE DEED OF MORTGAGE IS A MERE PRIVATE DOCUMENT
MORTGAGE IS NEVERTHELESS BINDING BETWEEN THE PARTIES EVEN IF UNREGISTERED
> Actual knowledge on the part of the buyer
> Actual knowledge=registration
PROCEDURE: WHAT HAPPENS WHEN YOU ENTER INTO A CONTRACT OF MORTGAGE?
1. Execute the document of mortgage
2. Go to a notary public, who will notarize the document.
3. Pay the documentary stamp tax within the first five days of the succeeding month. The doc stamp tax is a percentage of the value of the property mortgaged.
4. Go to the Office of the Register of Deeds and pay the registration fees. Before you pay the registration fees, the government will require you to update payment of realty taxes on the property. After payment of the registration fees, the mortgage will be annotated on the title.
EFFECT OF INVALIDITY OF MORTGAGE ON PRINCIPAL OBLIGATION
1. The principal obligation remains valid
2. Mortgage deed remains as evidence of principal obligation
Art. 2126. The mortgage directly and immediately subjects the property upon which it is imposed, whoever the possessor may be, to the fulfillment of the obligation for whose security it was constituted. (1876)
EFFECTS OF MORTGAGE
1. Creates a real right
a. If the mortgagor sells the encumbered property, the property remains subject to the fulfillment of the principal obligation secured by it
b. The mortgagee has a right to rely in good faith on what appears on the certificate of title of the
mortgagor of the property given as security and in the absence of anything to excite suspicion, he is
under no obligation to look beyond the certificate
c. Until the action for expropriation has been completed, ownership over the property remains
with the registered owner
d. Banking institution must exercise due diligence before entering contract of mortgage
e. If a person is the first mortgagee over a property which was sold in an auction by the second
mortgagee, the only right left to him is to collect his mortgage credit from the purchaser thereof
during the sale conducted
f. In a suit to nullify a certificate of title, the mortgagee is an indispensable party
2. Creates merely an encumbrance
Art. 2127. The mortgage extends to the natural accessions, to the improvements, growing fruits, and the rents or income not yet received when the obligation becomes due, and to the amount of the indemnity granted or owing to the proprietor from the insurers of the property mortgaged, or in virtue of expropriation for public use, with the declarations, amplifications and limitations established by law, whether the estate remains in the possession of the mortgagor, or it passes into the hands of a third person. (1877)
EXTENT OF MORTGAGE
> A REM constituted on an immovable property is not limited to the property itself but also extends to all its accessions, improvements, growing fruits, and rents
> To exclude them, it is necessary that there be an express stipulation to that effect
Art. 2128. The mortgage credit may be alienated or assigned to a third person, in whole or in part, with the formalities required by law. (1878)
Art. 2129. The creditor may claim from a third person in possession of the mortgaged property, the payment of the part of the credit secured by the property which said third person possesses, in the terms and with the formalities which the law establishes. (1879)
RIGHT OF CREDITOR AGAINST TRANSFEREE OF MORTGAGED PROPERTY
> The fact that the mortgagor has transferred the mortgaged property to a third person doesn’t relieve him from his obligation to pay the debt to the mortgage creditor in the absence of Novation
> A recorded REM is merely an accessory contract
> The creditor may only demand from any possessor the payment only of the part of the credit secured by said property
> Necessary that there be prior demand for payment be made on the debtor and the latter failed to pay
> Does not really apply to all third persons in possession of the property
> It only applies to those in possession of the mortgaged property in the concept of owner. If the possession by a third person is only as lessee, the creditor may not collect the credit from that third person.
Art. 2130. A stipulation forbidding the owner from alienating the immovable mortgaged shall be void. (n)
STIPULATION FORBIDDING ALIENATION OF MORTGAGED PROPERTY
> Such stipulation would be contrary to public good inasmuch as the transmission of property should not be unduly impeded
CAN MORTGAGEE PROHIBIT ENCUMBERANCES WITHOUT PRIOR CONSENT?
> Yes, regulation is not the same as prohibition
> The mortgagee may even add a standard. This is for good measure on the part of the mortgagee which is allowed by law.
IN THE FIRST PLACE, WHY WOULD YOU BE CONCERNED WITH THE DISPOSITION OF THE PROPERTY IF YOU ARE THE MORTGAGEE?
> You don’t want the property to be in the hands of someone who is litigious
> As a means of monitoring the financial condition of the mortgagor
Art. 2131. The form, extent and consequences of a mortgage, both as to its constitution, modification and extinguishment, and as to other matters not included in this Chapter, shall be governed by the provisions of the Mortgage Law and of the Land Registration Law. (1880a)
SOURCE: SOURCE: NEF6.COM