The Court of Cassation, with the judgment n ° 11029 of 05/27/2016, again dealt with the legitimacy of thejudicial mortgage with the capital fund. Is it therefore possible to register a judicial mortgage on a property linked to a capital fund?
Legitimacy of the judicial mortgage with the capital fund
Before getting to the heart of the discussion, it’s worth taking a step back and understanding what the asset fund is all about.. In accordance with the provisions of Articles 167 et seq. of the Civil Code, each or both spouses can create an investment fund, allocating certain assets to meet the needs of the family. Assets subject to the asset fund may be property real estate, mobile assets recorded in public archives or credit documents. The latter should be linked by making them names with a constraint annotation or otherwise appropriate. Instead, movable assets, sums of money or a business are excluded.
In particular, thearticle 169 of the CC stipulates that : “If it has not been expressly authorized in the constituting act, it cannot be alienated, mortgaged, pledged or otherwise tied to the property of the investment fund except with the consent of both spouses and, if there is has minor children, with the permission granted by the judge, with a measure issued in the council chamber, only in cases of obvious necessity or usefulness. ”
The purpose of this rule is to protect the integrity of the family patrimony. The creditors of the spouses will not be able to act with enforceability on the assets covered by the fund for debts incurred for purposes unrelated to the needs of the family, in the circumstances known to the creditors themselves.
When is it possible to register a legal mortgage with a capital fund?
In the case examined by the Court of Cassation: “A bank brought an action for claims claimed against a current account holder, relating to a responsible balance of the current account, to effects credited with the exception of a good end, unfinished arrears and a residual chirographic mortgage . The injunction, in opposition, deduced:
- the nullity of the agreed anatocystic interests
- unjustified declaration to the Risk Center made by another bank
- credit default from a wire transfer.
In addition, he claimed compensation for damages for illegal registration of a mortgage on assets established in the capital fund. ” This is what has been extrapolated from judgment n ° 11029 of 05/27/2016.
Under the aforementioned rules, the Court of Cassation concluded that the assets established in the fund, having a particular constraint of eca by third parties. This does not take into account any clause that was included in the Constituent Act regarding the manner of disposition of the goods themselves. However, if the spouses or one of them have taken on obligations in the interest of the family and have not been paid, the creditor can proceed to register a mortgage on the assets established in the funds.
If you want to check whether or not there are any legal situations on your property, you can request a hypocatastal review online.
Illegitimate disputed mortgage registration
In summary, registering a mortgage loan with the capital fund is not prohibited. The nature of the debts for which the execution of the assets of the fund can take place should be related to the needs of the family.
The burden of proof of foreignness in relation to the needs of the family lies with the debtor. The damage caused by an illegitimate mortgage registration must be proven. The spouse or the third party holder of the asset included in the asset fund can challenge the legitimacy of the mortgage registration, since it took place outside the provisions of theart. 170 of CC. There is the burden of proving illegality, starting with the fact that the debt of the spouse or third party was incurred for a purpose unrelated to the needs of the family and that this extraneity was known to the creditor who registered the claim. mortgage.
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