THE NECESSARY PROCESSAL REPRESENTATION OF THE LYING INHERITANCE FOR REGISTRATION PURPOSES
The author of this article explains the problem of registrations in the judicial procedures followed against lying inheritances or unknown heirs.
There is a problem that has practical consequences regarding the execution of judgments and resolutions, in which a lying inheritance or the ignored heirs of the plaintiff has been a party, regarding their representation in a judicial process.
These cases occur when a third party wants to enforce a certain right and finds an asset that was the property of a person who has already died, so this third party must file an action against the estate of the plaintiff, because this has not yet been accepted by those called to the succession. There is also the case where it is unknown who the heirs of the causer are, which is when we refer to: “the unknown heirs”. I refer to the doctrine of the Directorate General of Registers and Notaries (hereinafter, DGRN) from the Resolution of October 27, 2003, followed continuously by others. In practice, however, lawsuits continue to be filed and judgments of conviction obtained against the lying inheritance, declared in rebellion which, although it can be admitted, to have the capacity to be a party, poses problems of execution, given that the assets will not be in the name of the recumbent inheritance and the registrars, with the support of the DGRN in several resolutions from the aforementioned, deny the registration of the order that dispatches execution against the recumbent inheritance in a process in which has not been represented by an administrator or a judicial defender – if there is no administrator beforehand.
In the latter case, usually the appointment of a defender or judicial administrator to represent the lying inheritance or the unknown heirs must be requested at the instance of a party.
In any case, this position of the DGRN has been criticized on the understanding that it is not respectful of the interests of creditors – when there are any – to whom the law does not recognize the possibility of demanding the appointment of an administrator.
The jurisprudence and the resolutions of the DGRN understand that the vested inheritance cannot be considered as a legal person, but it is given a unitary consideration temporarily in order to be able to give it a legal entity and be able to have procedural capacity and be represented ( arts. 6.4 and 7.5 LEC).
The DGRN in several of its resolutions analyzes the scope of the registration qualification in judicial documents. Although the jurisdictional function corresponds exclusively to judges and courts, registrars must comply with enforceable judicial resolutions and ensure that the registrant has due treatment in the procedure, in application of the constitutional principle of jurisdictional protection of rights and Prohibition of procedural defense. For this reason, the registrar, solely for the purposes of registration, must qualify whether the registrant has taken part in the procedure or if, at least, he has had the legal possibility of intervention in the procedure determining the settlement, for having been located, regardless of the mode or guarantees of the citations practiced in the actions, therefore, if this were not the case, there would be an inconsistency between resolution and procedure, which is a qualifying matter. The DGRN considers that the appointment of a judicial defender must be limited to those cases in which the appeal to the unknown heirs is purely generic and be omitted when it appears from the documents presented that the Judge has considered sufficient the passive legitimacy of the lying inheritance
The Association of Property Registrars formulated a binding consultation on the location and “personation” of the inheritance lying as a defendant in judicial proceedings and on whether or not it is necessary to appoint a legal defender to represent and defend its interests.
In the DGRN Resolution, of October 3, 2011, on the location and “personation” of the lying inheritance for the purpose of making registration entries in judicial proceedings against it, the Directorate of the DGRN reproduces what it considers a reiteration of its doctrine, ratified by the Supreme Court:
Ensure the constitutional principle of jurisdictional protection of rights and the prohibition of procedural defense, which limits the effects of the res judicata to those who have been parties to the proceedings.
The registry principle of successive treatment, closely related to the previous one, prevents judicial resolutions from being included in the Registry that could lead to a patent procedural defenselessness of the registry holder, determining art. 100 of the Mortgage Regulation its scope of qualification. In order for the title to be registrable, the affected registration holder, when his authentic consent is not recorded, must at least show that he was a party or had the possibility of ervention in the procedure that determines the settlement. The registrar cannot qualify the passive legitimacy from a procedural point of view, nor the procedures followed in the judicial procedure, but he must qualify the fact that, who appears protected by the Registry, has been placed legally in the procedure.
Regarding the recumbent inheritance, initially the DGRN had a more rigid criterion demanding the judicial appointment of an administrator of the recumbent inheritance, in judicial proceedings followed against undetermined heirs of the registered holder.
Subsequently, to adapt to the jurisprudence, it has clarified that, the placement in the person of an administrator or judicial defender of the unknown heirs or the lying inheritance must comply with the successive treatment; such location will be an inexcusable requirement when the call is generic, directing the claim against ignored heirs; and, such location will not be necessary when a possible heir has been sued who can act in the process on behalf of the absent or unknown.
Finally, it must be taken into account that, in practice, the Public Prosecutor can assume the defense and representation of the lying inheritance or of the unknown heirs until an administrator or judicial defender is appointed (art. 8.2 LEC), however, the Public Prosecutor’s Office often does not accept it and we will have to wait for the Judge to appoint an administrator or legal defender.
Maria de Montserrat Romaguera and Edo
Collegiate No. 38,481
See pages 24 and 25 of the link: https://romaguera-edo.com/docs/328b.pdf