Canceling the mortgage contract, releasing the security deposit, removing the property from the land registry and contesting enforcement are different procedures. The solution depends on the type of mortgage, the date of its creation, the signed documents and the status of the secured claim.
When the validity of the mortgage can be challenged
The verification begins with the contract, the persons who signed it, the property described, and the formalities of constitution and publicity. For the real estate mortgage concluded under the current Civil Code, the contract is authenticated by notary, under the penalty of absolute nullity, and the mortgage is constituted by registration in the land registry. A problem of form, representation, or identification of the property or registration can only support an action if the legal conditions applicable to that act are met. Mobile mortgages have separate rules; they are not automatically subject to the formalities of the land registry.
Consult Civil Code, Including Articles 2.377–2.378 for real estate mortgage.
Stipulation of the claim and removal from the land registry
Full payment of the debt or another legal cause of extinguishment may remove the basis for maintaining the guarantee, but the entry in the land registry does not always disappear automatically. According to Article 885, paragraph (2) of the Civil Code, deletion is usually done with the authentic consent of the holder; a final judicial decision can replace this consent.
If the registration no longer corresponds to the actual legal situation, Articles 907–908 allow rectification. The procedure can be amicable, through the authentic declaration of the holder, or judicial, if there is a dispute. Depending on the reason, an initial action on the merits regarding the nullity or ineffectiveness of the act may be required, followed or accompanied by the request for rectification.
The prescription does not automatically mean the removal of the mortgage
Do not confuse the prescription of the right to demand payment of the debt with the prescription of the right to obtain forced execution and with the cancellation of the guarantee. Article 2.504, paragraph (1) of the Civil Code provides that the prescription of the action regarding the principal debt does not extinguish the mortgage action itself; the creditor may pursue the encumbered property under the law and within the limits of its value, subject to the prescription of the right of enforcement.
Article 706 of the CPC establishes, as a rule, a 3-year term for enforcement and a 10-year term for titles issued in the matter of real rights. The classification of the mortgage contract, the date on which the prescription began, interruptions, and transitional rules may change the calculation. For some mortgages established under the old Civil Code, the CCJ rejected unification requests as inadmissible; those rulings do not provide a mandatory rule of substance for any contract. Check Art. 706 of the CPC and Decision of the Supreme Court of Cassation no. 13/2022.
If forced execution has begun
The objection to enforcement may concern the enforcement acts, the conditions for approval, or, within the limits permitted by law, the enforcement title. It is not the same thing as the action for the nullity of the mortgage or the request for removal from the land registry. The procedural deadlines are short and are calculated in relation to the document communicated and the reason invoked; it immediately checks the summons, the approval decision, and the executor’s file. The Code of Civil Procedure regulates the objection to enforcement in Art. 712 et seq.
Documents useful for analysis
Gather the credit and mortgage contract, the additional documents, proof of payments, the balance calculation, the due date notifications, a recent extract from the land registry or the real estate advertisement register, and all enforcement documents. Comparing the data and entries helps in choosing the appropriate claim and verifying the deadlines.
