The necessary procedural representation of the unknown heirs or the lying inheritance in a court proceeding for registration purposes – Specialist lawyers in Inheritance and Donations in Barcelona

THE NECESSARY PROCESSAL REPRESENTATION OF THE UNKNOWN HEIRS OR THE LYING INHERITANCE IN A JUDICIAL PROCEEDING FOR REGISTRATION EFFECTS

The problem of registry entries in the processes followed against unknown heirs or lying inheritances

I would like to refer to a problem that has practical consequences regarding the execution of sentences and resolutions in which has involved a lying inheritance or the unknown heirs of the plaintiff, 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 owned by a person who already has dead, then this third party must bring an action against the deceased’s inheritance, because this has not yet been accepted by those called to the succession or, there is also the case where it is unknown who the heirs are causing, which is when we refer to “the ignored heirs”.

I refer to the doctrine of the 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 lying inheritance and the registrars, with the support of the General Directorate of the Registers and the Notary in several resolutions from the aforementioned, deny the registration of the order that dispatches execution against inheritance lying in a process in which it has not been represented by an administrator or appointing a judicial defender, in the case that there is no administrator, in this case, usually, the appointment of a defender or judicial administrator to represent the lien inheritance or the ignored heirs, must be requested at the instance of the 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. In this sense, Ocaña Rodríguez should be highlighted, “Succession law and credit law. A difficult confluence”, in General Council of the Judicial Power, Reflections on matters of Succession Law in 21st century society, Álvarez García and Zubiri de Salinas, directors, Madrid, 2008.

It must be said that the jurisprudence and the resolutions of the Directorate General of Records and the Notary, understand that the lying inheritance cannot be considered as to a legal person, but it is given a temporary unitary consideration in order to be able to give it a legal entity and be able to have procedural capacity and be represented (cfr. Arts. 6.4 and 7.5 of the LEC).

Highlight:

Judgments of the Constitutional Court: 109/1999, of June 14 and 185/2001, of September 17;

Judgments of the Supreme Court, First Chamber: of 12-03-1987, 7-04-1992, 27-12-1994, 11- 04-2000, 07-07-2005 and 06-12-2008;

Resolutions of the Directorate General of Registers and Notaries: January 22, 2003; June 25, 2005; February 24, July 5 and November 18, 2006; February 21, 2007; June 9, 2009; July 27, 2010; January 10 and 22, May 3, July 9 and 11, September 8, October 3 and 5, 2011; October 23, 2012; and April 4 and May 9, 2013.

In the same way, the Directorate General of Registers and Notaries (DGRN) in several of its resolutions analyzes the scope of the registration qualification in the court documents Although the jurisdictional function corresponds exclusively to judges and courts and registrars must comply with enforceable judicial resolutions, they must also 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 defenselessness.

For this reason, only for the purposes of its registration in the Property Registry, must qualify if the registrant has took part in the procedure or if, at least, he had the legal possibility of intervention in the procedure determinant of 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 qualifying matter.

The DGRN considers that the appointment of a judicial defender must be limited to those cases in which the appeal to the ignored heirs be purely generic and be omitted when it appears from the documents presented that the Judge has considered sufficient the passive legitimization of the lying inheritance.

The College of Property Registrars formulated a binding inquiry on 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 their interests, given that it revealed a discrepancy between the interpretative postulates defended by the DGRN and the judicial resolutions in oral trials against the qualification of registrars, understanding that the most recent jurisprudential doctrine considers that “the scope of qualification of the registrar in relation to the documents issued by the judicial authority would not cover the examination of the adequacy to the Law of the procedure of location of the inheritance as to the defendant, procedural procedure that escapes the assessment of the congruence of the mandate with the procedure or judgment in which it was issued” (Resolution of October 3, 2011, of the General Directorate of Records and Notaries, on location and personalization of the recumbent inheritance for the purposes of making registration entries in judicial proceedings against it).

The Directing Center 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.
For the title to be registrable, the affected registered owner, when his authentic consent is not recorded, must at least appear to have been a party or had the possibility of intervention, in the procedure determining the settlement.

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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 those who appear protected by the Registry have been legally placed 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. It has subsequently clarified, in order to adapt to the jurisprudence, that the requirement to appoint a judicial defender of the lying inheritance must be limited to those cases in which the call to the undetermined heirs is purely generic, the registrar may suspend the registration due to lack of successive treatment when this appointment has not been verified. On the other hand, it will not be considered a defect when the claim has been directed against certain people, as possible heirs.

Therefore, it can be determined that,

The placement in the person of an administrator or judicial defender of the unknown heirs or the lying inheritance will comply with the successive treatment.
Such location will be an inexcusable requirement when the call is generic, directing the claim against ignored heirs.
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.

The Resolution of July 12, 2013, of the DGRN, in the appeal filed against the qualification note issued by the Roses property registrar no. 2, which suspends a court order ordering the registration of the declaration of ownership by usufruct of the undivided half of an estate, says:

1. “(…)The question is raised again in this case whether the enforcement of a firm sentence issued in a subsequent declaratory procedure against indeterminate heirs of the registered owner can be registered”.
2. “It is a reiterated doctrine of this Directorate General that the constitutional principle of jurisdictional protection of rights and prohibition of the procedural fensión, limits the effects of the judgment to those who have been party to the procedure. In this sense, the registral principle of successive treatment (…) prevents judicial resolutions from being accommodated in the Registry that could involve a patent procedural defenselessness of the registrant. This is the reason why, article 100 of the Mortgage Regulation (in line with article 18 of the Mortgage Law) extends the registration qualification in front of judicial proceedings to the competence of the judge or Court, the adequacy or congruence of its resolution with the procedure or judgment in which it had been dictated, the external formalities of the document presented and the obstacles arising from the Registry, all limited to the exclusive effects of the registration. That principle of interdiction of procedural defense requires that the registered owner affected by the registrable act, when his authentic consent is not recorded, has been a party or at least had the possibility of intervention in the procedure determining the seat< /u>. This is how it is explained that, although it is not the responsibility of the registrar to qualify the personality of the acting party nor the passive legitimacy from the procedural point of view appreciated by the judge nor the fulfillment of the procedures followed in the judicial procedure, his qualification of judicial actions must reach, in any case, the fact that whoever appears protected by the Registry has been placed legally in the procedure. Therefore, this Directing Center understands that the qualification by the registrars of the fulfillment of the successive tract does not suppose to appreciate an eventual defective processing (which is not up to the registrar to determine), but an obstacle to the Registry derived from the successive tract, in accordance with articles 18.1 and 20 of the Mortgage Law, 100 of its Regulation and 522.1 of the Civil Procedure Law (…).

In this sense, Pardo Muñoz, F. J. (2011) should be highlighted. Registrar effectiveness of judicial decisions issued in civil proceedings against the existing inheritance, hereditary community or unknown, unknown or uncertain heirs of a deceased person. RRDGRN of August 19, 2010 and January 10. Madrid: Fundación Registral. College of Property and Mercantile Registrars of Spain (Cuadernos de Derecho Registral).

Finally, it must be taken into account that currently in practice, in accordance with art. 8.2 of the LEC, the Fiscal Ministry may assume the defense and representation of the lying inheritance or the unknown heirs until an administrator or judicial defender is appointed, however, sometimes this representation by the Fiscal Ministry is not accepted and you have to wait for the judge or court to decide appoint an administrator or judicial defender.

Maria de Montserrat Romaguera and Edo
Lawyer,
Member of the Catalan Association of Inheritance Law Specialists

Published in Immoscopia magazine, February 2016

Also personalized attention in Madrid (City Center) one day a week, it is necessary to make an appointment.

THE NECESSARY PROCESSAL REPRESENTATION OF THE UNKNOWN HEIRS OR THE LYING INHERITANCE IN A JUDICIAL PROCEEDING FOR REGISTRATION EFFECTS