These resolutions clarify the circumstances in which an appraisal certificate is required to create and amend mortgages following the reform of the Rules of Civil Law Procedure under Act 1/2013.
This resolution is noteworthy as it is the first one given relating to the need to submit an appraisal certificate to create and amend mortgages following approval of Act 1/2013, on measures to strengthen the protection of mortgage debtors, debt restructuring and social housing rental (“Act 1/2013”). Besides amending section 682 of the Rules of Civil Law Procedure and section 129 of the Mortgage Act, it added as a legal requirement for mortgage foreclosure via direct enforcement or out-of-court sale the double condition that the property must have been previously assessed in keeping with the regulations governing the mortgage market, and that the value for the purposes of auction that the parties established in the deed cannot be less than 75% of the appraisal value under those regulations.
This resolution aims to clarify uncertainties in the interpretation of the new wording of these provisions of law. The Directorate General for Registries and Notaries asserts that the law refers only to the deed creating the mortgage and cannot be extended to other acts carried out during the term of the mortgage (e.g., simple amendment), provided the appraisal value specified in the deed is not amended due to such acts (as had occurred in the case at issue). If that value is amended, an appraisal certificate issued in accordance with the mortgage market regulations must be attached.
The Directorate General for Registries and Notaries does not consider it necessary to present an appraisal certificate if the principal and mortgage liability has been increased (dividing the liability into two portions: the original liability and another liability postdating the amendment, in keeping with its own doctrine) without amending the original appraisal value. It holds that, in these circumstances, the prime factor will be the parties’ intention to establish a single, uniform legal contractual regime (amendment) that functions procedurally as a single unit, meaning that only one appraisal will be necessary, to be established originally in the deed creating the mortgage.
However, the certificate will be required if the covenant for court-ordered or out-of-court enforcement is not in the original deed creating the mortgage and is included in the definition of foreclosure in subsequent amendments.