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IurisConsulting Property Lawyers Priority Principle |
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By virtue of the Priority Principle (Prior in tempore, potior in iure), once a juridical act has gained access to the Registry, it is in front of any other incompatible or detrimental act, which has not been -or has been later- presented to the Registry, although those title deeds were granted before than the registered one. This way, inscribed or preventively noted in the Registry any title that affects a real estate, cannot be registered any other, of equal or previous date, which is opposite or incompatible with the registered one. With the presentation entry, it cannot be registered any other title during the term of 60 days, counted from the following day to the date of the presentation entry. It has an exclusive and hierarchic function. As exclusive principle, it supposes the closing of the Registry to any deeds containing rights incompatible with the inscribed one, by reason of substantial incompatibility (i.e., two titles of domain over the same Real Estate) or for major extension (p.e., the exclusion of a servitude if the domain is inscribed addressed to person different from the constituent one). As hierarchic principle, it confers preference to the inscribed rights against those which, being compatible, are later presented. It also determines the way of acting of the registrar. If the second or later presented title is incompatible, the closing of the Registry takes place; if it is compatible, the titles will be registered in the order in which they were presented. Practical consequences of the Priority Principle. The Priority Principle has the following consequences: 1) It is considered as date of the inscription (for all the effects that this one should produce), the date of the presentation entry. As exception, the term for the exercise of the right of redemption -9 days- (right to have a sale of property to a third party set aside or retracted, being the property then purchasable by the holder of the right at the declared price) is not counted from the date of the presentation entry, but from the date of the inscription entry. 2) To determine the preference between two or more inscriptions of equal date relative to the same property, then the respective time –the exact hour and minute- of their presentation in the Registry will be decisory. 3) If two titles are presented simultaneously, by the same person, it is this one who must decide the order of presentation. 4) The legal effects take place from the presentation of the document in the competent Registry, or telecopy from the incompetent Registry to the competent one.
Exceptions at the Priority PrincipleThe most relevant exceptions of the Priority Principle, are the cases of postponement, exchange (permutation) and rank reservation. The registry Rank is the hierarchy or priority that the limited real rights (i.e., several mortgages over the same property), able to coexist over the same real estate, have by virtue of the order of presentation of each respective title in the Registry. So, if the mortgage of better rank is executed (by means of public auction), the others become extinct. If the first mortgage becomes extinct by other different causes( i.e., full payment of the mortgage loan), the later ones advance their respective position in the ranking. Since the mortgage rank can be considered to be an economic value (and, this way, capable of negotiation), the individuals can reach agreements to modify their respective ranks. These alterations of the rank are: • Reservation. It supposes the creation of a mortgage constituted as deferrable for the sake of a future mortgage. • Postponement. It is the deferment of the rank of an inscribed mortgage, for the sake of other future one not constituted yet. The deferment has to take place in the moment that the future mortgage becomes registered. • Permutation. It is the reversal of the rank between two registered mortgages.
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