Following the amendment of article 208 of the mortgage law following law 13/2015, relating to the resumption of the registry tract, all those who studied it in depth came to the conclusion that it was an empty file since it imposed a series of requirements that were impossible to comply with, such as, on the one hand:
a.- Notification to the registered owner or his heirs.
The second section of article 208 of the Mortgage Law says:
3rd.- Along with the interested parties referred to in the fifth rule of section 1 of article 203, the person who appears, according to the most recent registration in force, as the owner of the domain or real right whose interrupted tract is intended to be resumed must be cited in all cases, or, if the death of this person is known, his heirs, the promoter having to prove this fact and the condition and identity of these.
4. When the last registration of ownership or the real right whose tract is intended to be resumed is less than thirty years old, the summons to the registered owner or his heirs must be made personally.
The same rule will be observed if, despite the registration being more than thirty years old, any other entry relating to any title granted by the registered owner or his heirs has been made subsequently, within said period.
b.- The necessary appearance of those cited in the file.
The fourth section of article 208 of the Mortgage Law says:
If any of those cited fail to appear or, if they do appear, object, the Notary will consider the proceedings concluded, recording this fact in the minutes that conclude the file, stating the reasons on which it is based. In this case, the developer may file a declaratory action against all those who have not appeared or have objected, before the Judge of First Instance corresponding to the place where the property is located.
The combined game of both rules meant, on the one hand, the need to summon many people who might not even have any interest in the file, and on the other hand that these people would take the trouble to appear before the notary, to give their consent to a resumption of proceedings that could be completely unrelated to them.
Fortunately, the Resolution of the General Directorate of Registries and Notaries of May 23, 2016 comes to solve this mess, even though it does not later give reason to the appellant, for other reasons that are irrelevant for the purposes of this comment.
What I do think should be highlighted are the following two issues:
Regarding the need to cite the registered owner or his heirs.
The resolution tells us that the second section 3ª of article 208 LH must be interpreted jointly with the second section 4ª, and that harmonizing both sections, it must be understood:
a.- When the last registration of ownership or of the real right whose tract is intended to be resumed is less than thirty years old, a personal summons must be made to the registered owner or his heirs.
b.- But when the last registration of ownership or of the real right whose tract is intended to be resumed is more than thirty years old, The summons to the registered owner must be nominal, although it may be carried out by edicts, and with respect to the heirs, the summons, which may also be by edicts, only needs to be nominal, when their identity is stated in the documentation provided..
Regarding the need for those cited to appear and agree to the resumption of the tract.
The resolution tells us that the literal meaning of the fourth rule of article 208 must necessarily be understood as related to number 4 (sic of the second rule) that precedes it and considered only as referring to the conclusion due to non-appearance of registered owners or their heirs. whose registration is less than thirty years old and have been personally summoned (or in the cases, also expressed in the same number, in which some other entry has been made subsequently, within said period), as well as the conclusion by the appearance with opposition of any holders of registered rights regardless of the age of the entry.
Any other interpretation would deviate from the concept and purpose of this procedure to resume the tract, which is inherited from the regulation prior to Law 13/2015, and would make many of the cases difficult in practice, rendering its legal provision sterile..
In Lleida on May 24, 2016.
