Priority
1. Criteria for setting priority. How is priority established? Is priority guaranteed by the fact of presenting firstly a document against other document that is potentially incompatible?
The criterion for setting priority in the PLR is the presentation’s entry date, which appears in the registration. In accordance with the provision of Article 6, paragraph 1, of the Code of Land Registry (CLR), The right entered in the first place has priority over those which follow for the same property, in order of date of registration and, within the same date, the temporal order of the corresponding presentations. The registration first requested takes precedence over the facts which registration shall be requested later. If a registry incompatible is subsequently requested it can be refused in some cases¹ or be made provisional for 6 months. After this time, if the doubts are not removed, this second registry shall be automatically canceled.
At this stage the Portuguese land registry does not ensure an absolute reservation of priority, because the presentation at the Diary, can lead to a refusal of the registry request. But if the interested parties appeal the registrars’ decision and win they will keep the priority of the presentation at the Diary book, against the registries performed after.
In the case of pending registries or registries inconsistent with the registry that guarantee the designated reservation of priority – as it is the case of records of purchase and mortgage made before performing the deed (registries which are provisional by nature under sub-paragraphs g ) and i) of paragraph 1 of Article 92 of the CLR) – the qualification is conditional until you set the status of registry that reserved priority as final (cf. sub-paragraph b) of paragraph 2 of the same Article 92).
As a rule, only the final registry entry assures a priority reservation.
¹These cases are stated by law. Article 68.ºof the Land Registry Code states that the registry shall be refused when:
– It is clear that that it is not titled in the documents submitted;
– It appears that the fact contained in the document is already registered or is not subject to registration;
– It is obvious the invalidity thereof;
– The registration has already been drawn up provisional by doubts and they do not show to have been removed.
2. Are there any possibilities of that a document presented later may go ahead or prevail in priority rather than other documents or deeds presented earlier?
As a rule there is no possibility that a document presented later may go ahead or prevail over other documents or deeds presented earlier (cf. Article 6 of the CLR).
There is an exception in case the registry requested is a consequence of another previously registered (see Article 34, paragraph 4, last part, of the CLR). This is the case, for example, of an acquisition registry as consequence of an enforcement proceeding, which results from an attachment previously entered. In this case, the acquisition registry requested before outweighs the register of an acquisition registered previously, but after the registration of the attachment. Note, however, that this regime is a consequence of Article 819 of the Civil Code, under which the acts of disposition, encumbrance and leasing of the property seized are always unenforceable against the creditor which benefits from the attachment registry.
3. Let’s suppose a document presented firstly that consequently holds priority but is affected by defects or lack of legal requirements. How long would it keep priority against other document presented later?
If the registry entry was refused only by appeal can the document hold priority. But if the defects were not strong enough² to lead to a refusal, the registry is performed as provisional by doubts and keeps its priority for 6 months against other document presented later (Paragraph 3 of Article 11 of the CLR).
During this deadline the registry can become final or be cancelled and each of these possibilities have different effects against other document presented later.
If the previous provisional registry becomes final the following incompatible registries, which were also provisional pending on the provisional registry, will be cancelled. If that registry is cancelled the following ones become final.
²Cfr. note 2.
