Article 3 of Law 26639 states:
Registrations of mortgages, encumbrances and restrictions on the powers of the owner of the registered right and the demands and judgments or other resolutions that at the discretion of the judge refer to registrable acts or contracts, expire 10 years after the dates of the inscriptions, if they were not renewed.
The rule contained in the preceding paragraph applies, when it comes to liens that guarantee credits, 10 years after the expiration date of the term of the guaranteed credit. (The underlining is ours).
What are the scope of this standard? Does only the registration expire or does the right also expire? Is it applicable to other records? In this post we will explain the scope of this article, since this normative device has been interpreted inaccurately.
BACKGROUND TO THE STANDARD
Article 1049 of the Civil Code of 1936 indicated:
The registrations of mortgages and encumbrances indicated in paragraphs 5 to 8 of article 1042, including those that appear in the domain entries, will expire 30 years after the dates of the respective registrations if they are not renewed.
Said article was not accepted by our Civil Code of 1984 since the causes of extinction were indicated:
Article 1122.- The mortgage ends by:
1.- Extinction of the obligation that it guarantees.
2.- Cancellation, termination or resolution of said obligation.
3.- Written resignation of the creditor.
4.- Total destruction of the property.
Since the expiration was not a case of termination, it was initially interpreted as that the mortgage guarantees did not expire.
Bill No. 01050 (which gave merit to the article under comment) proposed the following regulation:
Sole Article.- The inscriptions of mortgages and liens referring to restrictions and limitations on the powers of the owner, derived from contracts, wills and judgments; mortgage protests; Preventive and definitive precautionary measures and demands that refer to registrable acts, including those that appear in the property entries, will expire ten years after the dates of the respective registrations, if they were not renewed.
Note that it draws attention by making a simple comparison between the Civil Code of 1936, draft Law No. 1050 and Art. 3 of Law 26639 that the expiration period varies from 30 to 10 years.
The explanatory memorandum of the bill explains this:
That the aforementioned thirty-year term was in harmony with the one referring to the acquisitive prescription of real property and the expiring prescription periods referred to in arts. 871 and 1068 of the mentioned C .;
That the aforementioned acquisition and extinction prescription periods are reduced to ten years by arts. 950 and 2001 of the current CC; That a provision similar to that of art. 1049 of the CC, a fact that disturbs the exercise of the right of real property and forces to carry out cumbersome and onerous procedures, which lack justification; (…).
Currently, there is no doubt that the expiration is a different assumption from the causes of extinction of the mortgages regulated in the Civil Code, as verified in the Sixth Precedent of Compulsory Enforcement approved in the IV Plenary, in which it was arranged:
Article 3 of Law 26639 has introduced a new cause for termination of the mortgage , in addition to those indicated in Article 1122 of the Civil Code