REGISTRATION OF SALES
1. Documents for sales. What type of documents does your LR system envisage for sales and carrying out their registration ?
In Portugal, a contract of sale can be registered based on a public deed performed by a notary or based on private documents that must be authenticated by an authorized entity (lawyers, solicitors, registrars) and electronically filed.
The authentication act leads to a formal document signed by the authority and by the parts which remain attached to the private document. The authority which authenticates must verify all the requirements that the notary must verify when performing a public deed.
2. Method of registration. Please, indicate which of these circumstances or data form part of the content of the registration annotated in the registration books or land books for sake of a sale or conveyance.
The registration of an acquisition contains the following elements:
- Name, marital status (name of spouse and marriage property regime), tax number, address of the purchaser
- Name, marital status (name of spouse and marriage property regime), tax number, address of the seller.
- Cause of the acquisition (in this case: sale).
- Other agreements according to Article 94, for example, the retention of title clause or, in general, other clauses that constrain the effects of the registered acts.
REGISTRATION OF MORTGAGES
1. Please, indicate what main legislation governs mortgages in your system.
Mortgages are ruled by the civil code (articles 686 to 732) and by the land registry code.
2. In your LR system, is the registration of a mortgage constitutive?
In Portuguese LR system the registration of a mortgage is constitutive, what it is an exception for a system based on declarative registration.
3. Documents. What type of documents your LR system admits for establishing mortgages and carrying out their registration ?
Documents. Basically, for registering a mortgage you need the same type of documents as for the registration of a sale (see above VII.1.1).
4. Method of registration. Please, indicate which of these circumstances or data form part of the content of the registration annotated in the registration books or land books.
- Name or company name, marital status (name of spouse and marriage property regime), tax number, address of the purchaser
- Name or company name, marital status (name of spouse and marriage property regime), tax number, address of the seller
- The obligation ensured (for e.g. Loan), the credit value and its accessories, such as interest rates and interest for late payment (the maximum rate interest for late payment is of 4%), and the maximum amount secured( Including up to 3 years maximum of interest and interest for late payment).
5. Types of mortgages. If you believe it appropriate, indicate the kinds of mortgages which are relevant in your LR system.
In the Portuguese LR system, there are several types of mortgage:
- Voluntary – constituted by the owner to guarantee a particular obligation (ex.: loan or credit facility).
- Legal – resulting from the law, without dependence on the will of the parties, for certain types of obligations (eg maintenance obligation).
- Judicial – constituted over any property of a person convicted by court order to provide cash or other fungible thing.
6. Modifications. What does your legal system envisage about modifying mortgages? Do debtors have any legal possibility of negotiating newly the terms of the contract or any part of them?
Portuguese legal system allows the modification of mortgages carried out by new agreements (between creditors and debtors).
The mortgage can be transferred to another creditor of that debtor with the transfer of the obligation guaranteed.
A mortgage lender may assign the priority range of his/her mortgage to another mortgage lender of the same debtor.
On housing loans the debtor has the possibility to transfer a mortgage from one bank to another. But in registry practice this transfer results on the cancellation of the previous mortgage and the inscription of a new one.
REGISTRATION OF JUDICIARY CHARGES
1. What kind of orders or judgments can create, modify or cancel an entry in your LR system ?
In Portuguese LR system different types of judicial orders can be inscribed in the registry. Here are some common orders (but there are others):
a) Judicial orders of provisional measures to attach restrict disposition acts or freeze the assets of the debtor.
b) Judicial decisions in foreclosure proceedings.
c) Judicial decisions transferring the ownership or recognizing the property or other real rights on an immovable asset that can directly create, modify or cancel an entry in the land registry.
d) Judicial decisions ordering rectification of an entry in the Land Registry?
e) Judicial decisions about insolvency of owners or holders of property rights or rights in rem.
2. What’s the kind of registrations or entries caused in registration books or land books by these judiciary orders or decisions?
The registration of judiciary charges leads to common registrations whose content and duration depend on the law and on the decision of the Court.
3. In particular, are creditors-plaintiffs who demand payments of sums or money entitled to rely on the Courts and apply for annotations (caveats) or judiciary mortgages in order to attach debtors’ assets?
In the Portuguese legal system, creditors of sums of money or other fungible goods that already have a court decision on their behalf may apply for the registration of a judicial mortgage.
Creditors who have an enforceable document (for e.g. a public deed) which states a credit on their behalf may request before the court the seizure or attachment of the a property from the debtor, this seizure or attachment can be inscribed in the land registry.