A legal Question

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    • #51959

      Hi all – hope someone out there with a legal bent can advise me. 😀

      2 years ago we bought a villa -a resale – we did not need a mortgage, we bought it for cash.
      The vendor had a mortgage on the property – and at the notary , at the time of purchase, a rep from the bank was there – and took the money owing.

      However, last month we hired another abogado to look into our land boundaries and she contacted the Land Registry.

      She discovered that the mortgage had not been cancelled – and the villa is registered as having a mortgage outstanding. The mortgage does not appear on our escritura.

      We have contacted the original abogado and he claims that the vendor should have got the Deed of Cancellation from the Notary and lodged it with the Registry. Noone else can do this – the Deed of Cancellation is the property of the vendor.
      He claims that it is the sole responsibility of the vendor to collect it from the Notary and take it to the Registry.
      Surely it it is part of the abogado’s duties to make sure that this is done 😕 Could the abogado have withheld some money until this piece of paperwork was complete. ❓

      He has assured us that all will be OK when and if we come to sell our place as the Notary knows the mortgage has been settled.

      Anyone know what our situation is ❓



    • #63315

      I would compell the vendor to register the cancellation or otherwise you will have to ask for it judicially. Ask your former lawyer to do so as part of his duties towards you.


    • #63397


      many thanks – have checked with the abogado – he assures us he is doing all that he can.

      But – what if the vendor is uncooperative/unreachable etc..?…

      My brain tells me that we have paid off the vendor’s mortgage therefore all is OK – but unfortunately at night my dreams turn into nightmares… ie us being liable for the mortgage because it is registered as such. 😕 😛

    • #63400

      You have official declaration of that mortage as a paid debt with the deed that you have. The Land Registry is an office for public information, but you can always prove before third parties ( interested or not) that the house has no mortgage loan on it as you have got Notary deeds that proves that.

      If a case arrives that you need to have it registered and you see that it is impossible to have the vendor cancelling it and don´t want to go into a legal procedure to do so, there is another option : you can register the cancellation by your own means, and as a final attempt, to ask the previous owner to pay that amount voluntarily of judicially. It depends of what will come as necessary.

    • #63547

      Dear JoJo,

      If you know from which financial institution the vendor had his mortgage why don’t you ask your lawyer to contact them and ask them to officially confirm the mortgage has been settled and they have no claim on the property. If you don’t know the bank or other lending party their name should be in the certificate from the Land Registry where the mortgage is mentioned.

      There used to be a 0,5% tax to pay cancel a mortgage but this no longer applies so you will only have to pay the bank’s cost to have a Notarised confirmation prepared and also the Land Registry fees to have it registered. Your lawyer should obtain estimates of these costs and advise the vendor you would be claiming these from him if he is not prepared to register the cancellation himself.

      Good Luck

      Terry English

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