LA HIPOTECA DE LA VIVIENDA FAMILIAR EN EL DERECHO CATALÁN.

Abstract

Article 231-9 of the Catalan Civil Code (CCC) addresses the specific legal procedure for housing that is regarded as «the family home» of a married couple or stable partnership. This procedure essentially regulates the requirements that must be met in order for an act of disposal concerning the family home, carried out by the exclusive owner of the home or an owner of a share of a real right in the family home, to be effective. The act of disposal to which the procedure is applied must compromise the use that can be made of the home. Otherwise the general procedure is applied, under which the home is an asset («thing») subject to the law for economic rights. Acts of disposal include acts intended to bring the home under some lien or burden that does not necessarily affect or compromise the use to which the home is put, at least not directly or immediately (e.g., a mortgage). Catalan legislators, however, deemed it necessary to extend the specific procedure for homes (embodied mainly but not only in the CCC, article 231-9) to the creation of mortgages on the family home as well (CCC, art. 569-31). In our opinion, however, the rules are not totally extended, because the legal consequences of the absence of the required «consent» (rectius, assent) of the other spouse or partner do not appear to be the same: In the first case, they are the effects stemming from annullability; in the second, they are the effects stemming from invalidity.