Law no (22) of 2004 Regarding Promulgating the Civil Code

طباعة
 
Section: Subchapter Two: Effects of Mortgage with regard to Third Parties (1081-1087)

  • Article 1081 

     
    1. A mortgage shall not be effective against third parties unless it is registered before the third party acquires any real right over the mortgaged real property without prejudice to the provisions of bankruptcy.
    2. It shall not be valid to hold against third parties to transfer a right guaranteed by a registered mortgage, nor to hold to the right arising from the subrogation of the debtor by another person for such right under the law or by agreement. In addition, it shall be invalid to hold to the transfer of the rank of the mortgage in favour of another mortgagee unless the same is entered in the margin of the original registration.

  • Article 1082 

     
     
    The effect of a mortgage shall be restricted to the sum specified in the attached list of information or the due amount, whichever is lesser.

  • Article 1083 

     
     
    A mortgage shall lapse if not renewed within ten (10) years from the date of its conclusion, provided that the mortgagee shall conclude another mortgage if possible under the law, which rank shall be from the date of concluding the same, and every renewal thereof shall be effective only for ten years from the date thereof.

  • Article 1084 

     
     
    A mortgage shall be renewed even during the procedures of attaching the mortgaged real property. However, it shall not be necessary to renew a mortgage if the right has expired or real property is discharged and, in particular, if real property is sold under a judgment and the date for increasing the ten-year period has expired.

  • Article 1085 

     
     
    A mortgage may not be cancelled unless under a final judgment or with the consent of the mortgagee according to an official decision by him.

  • Article 1086 

     
     
    Where the cancellation is subsequently invalidated, the mortgage shall regain its original rank even though the cancellation shall have no retroactive effect in respect of the entries and registrations made during the period between the mortgage's cancellation and its invalidation.

  • Article 1087 

     
     
    The mortgagor shall bear the expenses of the mortgage, its renewal and cancellation unless agreed otherwise.

  • Article 1088 

     
    Mortgagees obtain their rights from the normal debtors under mortgage from the proceeds of mortgaged real property or from the property which has been substituted to it, according to the rank of each of them, even if they have performed their registration on the same date.

  • Article 1089 

     
     
    The rank of mortgage shall take effect from the date of its registration, even if the debt guaranteed by the mortgage is conditional or is a future or a promised debt.

  • Article 1090 

     
     
    The registration of the mortgage shall require the incorporation of the expenses of the contract, its registration and renewal in the distribution and in the same rank of the mortgage.

  • Article 1091 

     
     
    A mortgagee may assign the rank of his mortgage within the limits of the debt guaranteed by this mortgage to another mortgagee regarding the same mortgaged real property. It shall be permitted to hold against such mortgagee all the pleading which the debtor may hold against the original mortgagee. All the exceptions which may be opposed to that other creditor may also be opposed to the first creditor save for those that relate to the lapse of the right of the first creditor if the said lapse has occurred subsequent to the assignment of his rank.

  • Article 1092 

     
    1. When the debt is mature, the mortgagee may execute the mortgaged real property in possession of the possessor thereof unless the possessor elects to settle the debt or discharge the real property from mortgage or assign such mortgaged property.
    2. Any party to whom the ownership of such property or any mortgageable right in kind in respect thereof is transferred for any reason whatsoever shall be deemed the possessor of the mortgaged real property without being personally responsible for the debt guaranteed under such mortgage.

  • Article 1093 

     
     
    The possessor may, upon the maturity of the debt guaranteed under the mortgage, discharge such debt and its supplements, including the expenses of the procedures from the date of being notified to settle the debt. This right shall remain until the date of sale and in such event the possessor shall have the right to claim all the amounts paid by him from the debtor and the former owner of the mortgaged real property. The possessor may in respect of his rights subrogate the creditor who obtained the debt save for the rights relating to securities submitted by a person other than the debtor.

  • Article 1094 

     
     
    The possessor shall keep the registration of the mortgage in which he subrogated the mortgagee and renew such registration whenever required until the registrations on real property at the time of registration of the possessor's title of deed are cancelled.

  • Article 1095 

     
    1. Where there is an amount sufficient to fulfil all the debts of the debtors whose rights are registered in respect of real property and such amount is due from the possessor because of possessing the mortgaged real property, each creditor may require the possessor to repay his debt provided that such creditor's title deed is registered.
    2. Where the debt due from the possessor is not mature immediately, or it is less than the debts due to the creditors or it is different from such debts, the creditors may, if in agreement, demand that the possessor pay his debts to the extent of the amounts due to them. Payment shall be in accordance with the conditions under which the possessor assumed in his original covenant for payment and within the agreed period in which the payment should be settled.
    3. In both events, the possessor may not dispose of his obligation by waiving real property. However, where the possessor repaid his debts, real property shall be deemed discharged of every mortgage. The possessor shall hold the right to request the cancellation of any attachments regarding the mortgage.

  • Article 1096 

     
    1. Where the possessor has registered his title deed, he may discharge real property of any mortgage that was registered before the registration of such deed.
    2. The possessor may use such right even before the creditors submit an application for attachment of real property or serve a notice on the possessor. Such right shall remain until the date of issuing the list of the sale conditions.

  • Article 1097 

     
     
    Where the possessor wishes to discharge real property, he shall serve a notice on each of the creditors whose rights are registered. The said notice shall include the following information:
    1. An extract from his title deed, including the kind and date of disposal in addition to an accurate description of real property and the name of the previous owner thereof. If such disposal was a sale, the price and its supplements shall also be stated.  
    2. The date and registration number of the possessor's title.  
    3. Rights which were registered on real property before registering its title deed, the date of such registrations, the amounts of such rights and the names of the creditors.
    4. The amount which the possessor estimates as the price of the real property. Such amount shall not be less than the price which is taken as a base for estimating the price in the event of dispossessing real property for public interest. This amount shall not be less than the remaining amount of the price being due from the possessor if such a disposal is a sale. If the parts of real property are associated with different mortgages, the value of each part should be estimated separately.

  • Article 1098 

     
     
    The possessor shall state in the notice provided for in the previous Article that he is ready to settle the registered debts to the extent of the property's valuation. The possessor shall not be obliged to accompany the offer with the cash amount. However, the offer shall be restricted to expressing the willingness to settle the due amount immediately, whatsoever the date of maturity of the registered debts.

  • Article 1099 

     
    1. Every creditor may register his right, and every guarantor of a registered right may apply for the sale of real property requested to be discharged. Such right may be exercised within thirty (30) days from the date of the last official notice.
    2. Such application shall be under a notice to be addressed to the possessor or to the previous owner. The applicant shall deposit with the court's treasury an amount sufficient to cover the expenses of the sale in an auction. The applicant may not refund the expenses paid by him if the auction was not closed with a price higher than the amount offered by the possessor, and the application shall be invalid if these conditions are not fulfilled.
    3. The applicant may not waive his application unless with the consent of all the registered creditors and all the guarantors.

  • Article 1100 

     
     
    Where an application for sale of real property is submitted, the applicable procedures of compulsory sale shall be followed and the sale conducted pursuant to the request of the party interested in the urgent sale, whether an applicant or possessor. The person commencing the procedures shall state in the notice of sale the estimated value of the real property.

  • Article 1101 

     
     
    Where the sale of the real property is not requested by the specified date and under the applicable situations, or if the sale is applied for but the price offered in an auction is not higher than the amount offered by the possessor, the ownership of the real property, free from any registered right shall be granted finally to such possessor. This shall be the case if he paid the estimated price of such property to the creditors whose rank allows them to receive their right from such owner, or if he deposited such amount with the court's treasury.

  • Article 1102 

     
    1. The mortgaged real property shall be vacated under a report to be submitted by the possessor to the competent court's clerk's office, and he shall request that the same be noted in the margin of the attachment registration. The creditor initiating the procedures shall be notified of such vacation within five days from the date of deciding thereon.
    2. Any person who has an interest in urgent procedures may apply before the competent court of summary affairs for the appointment of a receiver against those attachment procedures which are to be executed and the possessor may be appointed as a receiver if he requested the same.

  • Article 1103 

     
     
    Where the possessor did not elect to fulfil the registered debts or to discharge real property from the mortgage or to vacate such property, the creditor-mortgagee may not execute attachment procedures against the possessor unless he has first notified him to pay the due debt or to vacate such property. Such notice may be addressed after or at the same time as the registration of attachment.

  • Article 1104 

     
    1. The possessor who registered his title deed, and who is not a litigant in the suit in which the debtor is the judgment debtor, may hold to the aspects of pleading which the debtor may have held to if the judgment for the debt was subsequent to the registration of the possessor's title deed.
    2. The possessor may in all events hold to the pleadings which the debtor may still have the right to hold thereto following the judgment.

  • Article 1105 

     
     
    The possessor may enter the auction provided that he shall not offer a price less than the remaining amount due from him off the price of such property under sale.

  • Article 1106 

     
     
    Where the mortgaged real property was sold compulsorily, even after taking the discharging or vacation procedures and the auction was knocked down to the possessor, he shall be deemed the owner of such property by virtue of his original title deed. In such case, the real property shall be discharged of any registered right if the possessor paid the price which the auction knocked down or deposited it with the court's treasury.

  • Article 1107 

     
     
    Where the auction in the situations provided for under the previous Article was knocked down to a person other than the possessor of such property, such person shall receive his right on behalf of the possessor of the property pursuant to the judgment of sale.

  • Article 1108 

     
     
    Where the proceeds of the property sold in the auction exceeded the amount due to the creditors whose rights are registered, such excess shall be payable to the possessor and his creditors-mortgagees shall be entitled to recover their debts from it.

  • Article 1109 

     
     
    The possessor shall have the right of easement and other rights in kind which he had before the transfer of real property to him.

  • Article 1110 

     
     
    The possessor shall return the proceeds of real property from the time he was notified of the payment or vacation. If the procedures were abandoned for three years, the proceeds shall be calculated only from the date of addressing a new notice to him.

  • Article 1111 

     
    1. The possessor shall have recourse for the claim for guarantee against the previous owner within the limits of the right of recourse granted to the successor against his predecessor from whom he acquired ownership either by commutation or gratuitously.
    2. The possessor shall also have recourse against the debtor for any excess amount he may have paid, for any reason whatsoever, in addition to what was due from him according to his title deed. The possessor shall also be substituted to the creditors whose rights he has settled and he shall, in particular, be subrogated to the securities provided to them by the debtor to the exclusion of any securities provided by any person other than the debtor.

  • Article 1112 

     
     
    The owner shall be personally responsible to the creditors for any destruction or damage which may occur to the property due to his fault.

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