The scope of the mortgage liability

responsabilidad hipotecaria

Within the five-year limit Article 114 LH,  freedom of pacts interest affects third owners, although they had not been part of the contract


 Consult your case now


The mortgage liability is the maximum amount by which a mortgaged responds well in case the debtor fails to comply with its obligation.

The parties may limit their amount with the provisions of Article 114 of the Mortgage Law: Five years of interest against third parties.

Fact background,,es,Juan Alberto and Paulina filed suit against FTA,,es,Asset Securitization Fund,,es,requesting the declaration of nullity for abusive of the floor and ceiling clauses contained in the novation contract of the mortgage loan of,,es,with the corresponding refund of amounts unduly collected,,es,The Securitization Fund Management Company,,es,Beech,,es,acting on behalf of FTA, he responded to said claim alleging that he lacked passive legitimacy since the entity had no legal personality and that it constituted only a private and open fund and that therefore the passive legitimization corresponded to BBVA as successor of Catalunya Banc that was the Company fund constituent,,es

The 2 February 1995 UNICAJA granted a home equity loan to D. Felipe, Ms.. And Mrs. Sonia. Tania. The loan amount was 7.500.000 ptas. (45.081€).

The mortgage was established on the farm No. 000 registration of property nº1 Fuengirola. It was priced, auction purposes, in 7.000.000 ptas. Mortgage guarantee of the capital, 3.500.000 ptas., and the agreed interest equal to four years; total; 44.628,93 €.

The mortgaged property was owned by D. Teodulfo and Dña. Bibiana (mortgagors not debtors). These, They also ensured the portion not covered with the mortgage, by a joint surety.

Before the loan default, UNICAJA urged enforcement proceedings against borrowers and guarantors. He dispatched execution amounting to € 46,448.48 principal and 21.035,42 € for interest and costs. Procedure resulted seized farm No. 000.

The 21 October 2002, UNICAJA gave credit guarantors, D. Teodulfo and Dña. Bibiana, for the price of € 87,936.50. He told the court the 16 January 2003.

assignees, as successors of the performing procedural, requested foreclosed property auction. The auction was held on 20 January 2005. En ella, He was awarded the property to commercial COSTASUEL S.L., by the amount of 3.600 euros. Also, COSTASUEL S.L. He succeeded to loads and previous charges; including mortgage.

The 9 June 2005, COSTASUEL gave possession of the property.

The 15 March 2010, D. Teodulfo filed foreclosure lawsuit against COSTASUEL. He requested the claim the amount of the debt at the date of transfer (87.936,50 €) plus 42.683,83 € in interest and expenses.

The 4 May 2011 COSTASUEL filed suit against D. Teodulfo and Dña. Bibiana. He requested the annulment of foreclosure against him and followed the cancellation of the mortgage on the building registered no 000 registration of property nº1 Fuengirola. Alternatively requested that "declaration that the defendants should receive only the principal and interest guaranteed for the past two years and the losing party of the current annuity mortgage securing the building registered no 000, conforme al art. 114 of the Mortgage Law (LH)”.

Teodulfo and Dña. Bibiana opposed the demand. They requested their full dismissal.

Primera Instancia

The 3 September 2013 the Court of First Instance No. 1 issued no statement Fuengirola. 218/2013.

He estimated the demand made by COSTASUEL in their alternative claim. He condemned the defendants to pay the costs. He stated that, in addition to the principal guaranteed by the defendants-performers, they could receive interest, with limiting art. 114 LH.

Provincial Court

The lower court decision was appealed against by D. Teodulfo and Dña. Bibiana.

The 30 March 2016 sentence was handed down by the 4th Section of the Audiencia Provincial de Málaga. He dismissed the appeal. He considered that the third purchaser of a mortgage estate only responds provisions as a general rule in art. 114 LH. And, that the covenants contained in the guaranteed contract with the mortgage, on a larger mortgage liability, They do not affect the third party purchaser for not being part of the contract. He concluded that, the mention in the art containing. 114 LH, unless otherwise agreed, only work inter parts, but not against third parties.

Supreme Court

The defendants filed an extraordinary appeal for procedural infringement and appeal.

The only reason the appeal was violation of art. 114 de la LH. He cited the violation of the STS 186/2009, of 17 March, and 435/2009, of 11 May. He argued that there was no applying the limit of two years of interest, because a longer period is agreed (4 years old). And, that pact operated both with respect to the parties that signed the mortgage contract, and third-party acquirers of the mortgaged property.

The 6 May 2019, the Civil Chamber of the Supreme Court, gave judgment, with No.. 250/2019.

First, Remember the art. 114 LH, what did he say:

Unless otherwise agreed, constituted mortgage credit for accrued interest will not secure, to the detriment of third, plus capital, but the interests of the two preceding years and the losing party of the current annuity. In no event may be agreed to secure mortgage interest term exceeding five years. "

So, the delimitation of mortgage interest liability against third parties had a ceiling: 5 years old. So that, under no circumstances may be claimed, against third parties, interests of more than five annuities.

So good, within this maximum Law covenant made possible freedom; or by fixing a number of years other and within a maximum of 5, either by fixing a maximum amount which may not exceed the result of applying the interest rate established for a period of 5 years old.

The Chamber cited the STS 770/2014, of 12 January 2015, which determined that: “The art. 114 LH refers to objective extension mortgage, in relation to third. Standard mortgage contains such a limitation of liability of the estate, so that only hurts the registered third load and a possible claim limit derived therefrom“.

The art. 114 LH distinction between the interest agreed by the contracting parties and the mortgage liability. So, writing mortgage responding to this dual consideration. it contained, a first part (obligational) regulating the loan and, a second where the guarantee was constituted on good.

In this second part, it contained the clause stating the mortgage liability. This, He was composed and represented by the sum of: the loan principal, four annual payments of interest at the rate agreed, the amount budgeted for interest for late payment and the amount budgeted for costs and expenses.

The mortgage liability was the instrument of information to third parties and the creditor. If there were, the creditor may only require ordinary interest corresponding to the maximum of two years fixed by law. Hence, the mortgage liability was the maximum amount of which responds the property in case of foreclosure for nonpayment of the loan guaranteed by.

In the case of debt interest, the law has limited the interests of mortgage responding to facilitate third parties to know the amount of their mortgage liability.

He determined the Chamber, “the mortgage liability has both inter parts as for all contribute to determining the extent of mortgage cover.

The maximum operating mortgage cover all legal purposes: favorable or adverse; both in relations between the mortgagee and mortgagor debtor, and between the mortgagee and the third holder, or having any rights or subsequent charges levied on farm, adquiridos a consideration or.

The Chamber concluded that it should be noted that CORTASUEL won the mortgaged property by auction. This was supposed to comply with the provision of art. 650 the LEC, whereby: “Successful bidder of the property as provided in the preceding paragraphs will keep accepting loads or previous assessments, if any and subrogated liability for them.·

Namely, CORTASUEL it was subrogated and the liability of the previous mortgage, guaranteeing 4 years of interest. Said temporary margin (4 years old) which it was within the margins under Art. 114 LH (maximum 5 years old).

Therefore, The Board agreed the estimate of appeal. Upheld the appeal. Dismissed the lawsuit filed by CORTASUEL. He condemned CORTASUEL the coast of first instance.


The art. 114 LH fixed in five years the limit on mortgage liability interest that will support the third. Within this maximum, the law allows freedom of pact, which will affect third-party purchasers of mortgaged property.

 Consult your case now

Leave a Reply


Set as default language
 Edit Translation

Subscribe to receive a book PDF

Just for signing up receive via email the link to download the book "How to change lawyers" en format digital.
Sign up here

Sígueme en Twitter

Subscribe me

* This field is required