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IurisConsulting Property Lawyers Disposal Prohibitions |
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Disposal Prohibitions
The prohibitions of disposal suppose a limitation to the right of property. Because it affects to one of the most important faculties of the ownership, the Spanish Civil Law is opposite to its admission, being very restricted the cases where it is accepted.
The jurisprudence understands that, being this prohibition a limit to the most important facultie of the proprietor, the right of disposal, its interpretation has to be realized under restrictive criterion and bearing in mind the purpose intended by whom establishes such a limitation. The prohibitions of disposal have, in any case, temporary character and have to be justified with a licit cause.
The prohibition of disposal supposes also the prohibition of mortgaging (Nevertheless, the mortgage can be accepted by the Land Registry if it is agreed that cannot be executed by non-payment of the credit or of its interests until the end of the term of validity of the prohibition of disposal).
The prohibitions of disposal affect to the voluntary alienation, but they do not prevent the inscription of judicial executions, since the opposite would damage the principle of universal (say, with all the assets and rights of a person) civil liability, which is a matter excluded of the principle of the intention’s autonomy. For example, it is possible to garnish a Real Estate subject to prohibition of disposal, although it is not possible to execute it before the expiration of the prohibition.
a) Legal prohibitions. The prohibitions of disposal established by the law, which (without express judicial or administrative order) have full enforceable effects, do not need separated and special inscription and produce their effects as legal limitations to the domain. b) Judicial and administrative prohibitions. They are object of enforcement notice. They constitutes a precautionary measure, during a civil proceeding, of the power of disposition of the defendant regards of those assets with such a provisional registration to protect legal interest. The effect is the «closing of the Land Registry» to all the acts or dispositions that the defendant realizes later over the caveated assets. For its cancellation muts be proved the completion of the process in which they were decreed. c) Voluntary prohibitions. The prohibitions of disposal imposed by the testator or donor in acts or dispositions of last will, marriage settlement, donations and some other acts, can be entered in the land Registry whenever the current legislation recognizes his validity. Regards to the Prohibition of Disposal imposed in Testament, the testator can impose a prohibition of disposal, whenever the prohibition is not perpetual; If the prohibition of disposal is temporary, it is valid up to the limit of the second degree of relationship. It is also invalid if it is stablished in favor of a person who is not alive at the time of the death of the testator.
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