The article under comment regulates 2 assumptions to apply the calculation of deadlines:
- In the case of liens that guarantee credits, the term of ten years is counted from the expiration of the term of the guaranteed credit.
- In the case of liens that do not guarantee credits, the term of ten years is counted from the date of registration, that is, from the date of the entry for the presentation of the title, due to the retro-priority of the registration.
Now take into account the provisions of the fourth agreement approved in Plenary IV of the Registry Court:
The expiration period contemplated in article 3 of Law No. 26639 is one of expiration. However, the expiration does not operate if the title presented or the registration item shows that the lien has started within said period .
This applies to both voluntary and legal mortgages. Note that with respect to the latter, if they were constituted under the Civil Code of 1936, the Registry Court in its resolution No. 1070-2013-SUNARP-TR-L decided that it was appropriate to cancel due to expiration under article 3 of the Law No. 26639, on an unregistered legal mortgage.
In other words, in the item there was only the transfer, although it was indicated in the entry that the price had not been completely canceled. This generated a legal mortgage, and since the issuance of an entry indicating this was not required, the existence of the real mortgage effect was implicitly in the record. To cancel this, the Court indicated that the case of expiration was applicable.
Now, in this case, the registration expires, but also the real mortgage right, since if this were not the case, it could be re-registered by means of the comparison with the archived title that gave it merit.
The assumption from which the legislator starts is that the registration is constitutive and, by canceling the registration, the right is also canceled.
Now, this does not contradict what we have indicated in another space on the constitution of the mortgage business outside the registry, since from the joint interpretation of articles 143, 144, 1098 and 1099 it can be deduced that the mortgage legal business It occurs outside the registry, some mandatory effects also occur outside the registry and the real effects with the registration in the registry.
After enrollment expires, these actual effects are no longer in effect.
APPLICATION TO OTHER RECORDS
Now keep in mind that numeral 3 of Law 26639 also refers to:
(…) Claims and judgments or other resolutions that at the judge’s discretion refer to registrable acts or contracts (…).
This has been understood in a general way, even extending to other registries such as that of natural persons. An example of this was given in Resolution No. 409-2006-SUNARP-TR-L which states that the declaration of declaration is included in Law 26639, under the heading of “other resolutions” and that therefore expire at the 10 years of annotated.
The basis of said article was in the Real Property Registry both in its origin and in its foundation, as well as in the drafting of the text itself, applying it to other records in an analogical way or via extensive interpretation, we consider that it could not be substantiated given that the rule under comment extinguishes rights.
Remember that the preliminary title of the Civil Code states:
Article IV.- The law that establishes exceptions or restricts rights does not apply by analogy .
The regulation of the expiration of mortgages is useful, and it is enriched when it is interpreted jointly with other normative devices.