The foreclosure of a mortgage constituted by a non owner. So-called «tercería de dominio» and declarative procedure

Abstract

This paper analyses the procedural means of defence that Spanish law provides to the true holder of real property, in those cases in which he considers that the mortgage constituted on the latter belongs to a third party, breaching therefore the requirement of article 1857.2 of the Spanish Civil Code. In short, the so-called «tercería de dominio» (remedy provided to the holder of property rights that are subject to an enforcement proceeding for debts of a third party) and the declaratory procedure referred to in articles 696 and 698 of the Spanish Civil Procedure Act are analysed, particularly regarding its requirements, object and effects; all in the light of the Spanish constitutional principles. Finally, some lege ferenda conclusions are presented, aimed at improving the system.