Inmojudicial: defending your property before the courts

«Inmojudicial» is the name under which we group court and enforcement proceedings in which the central element is a property: mortgage enforcement, court auctions, evictions, removals, third-party claims, division of co-owned property, court-ordered possession following an award and the realisation of properties in insolvency proceedings. It is not a type of procedure named as such in the law, but an area of work combining civil procedure, mortgage law and registry law.

What they have in common is that the final outcome is usually a decision on who possesses, who owns or who is paid out of the value of the property, and that time limits are short: if you do not react in time, rights are lost. An unanswered notification may end in a demand for payment, a seizure or an auction.

It is therefore important to review the documents received (claim, demand, decree, public notice) from the outset, to identify the procedure, the time limits and the real possibilities of opposition or settlement, and to coordinate the litigation strategy with the registry position of the property.

Since 2015, court auctions of properties have been held electronically on the Auctions Portal of the Spanish Official State Gazette Agency (BOE). Before the auction, the property is seized and the seizure is recorded in the Land Registry, a certificate of charges is obtained, the auction value is set (in mortgage enforcement, the value agreed in the mortgage deed) and the notice is published.

Bidding remains open for twenty calendar days. To take part you must register on the portal and lodge a deposit of 5% of the value of the assets; the enforcing creditor may bid without a deposit. At the close, the portal returns the deposits except that of the highest bidder, and the court clerk (letrado de la Administración de Justicia) examines whether the award should be approved. As a general rule, it is approved if the highest bid reaches 70% of the auction value. If it is lower, the law provides steps for the debtor to present a third party who improves the offer or for the enforcing creditor to request the award, and in the case of the debtor's main residence the award is not approved for less than 70% unless it covers everything owed.

Once the award is approved, the successful bidder must pay the rest of the price within the period granted (as a general rule, twenty days), after which the decree of award is issued. The charges ranking after the one enforced are then cancelled and possession of the property may be requested.

Yes. You do not need a lawyer or court representative (procurador) to bid in a court auction: it is enough to register on the BOE Auctions Portal with an accepted means of electronic identification, lodge the deposit (5% of the value of the assets) and bid online during the twenty days of the auction.

The fact that it is not compulsory does not mean it is simple. An auction is a purchase with risks that the buyer assumes: the property may be occupied, it normally cannot be inspected inside unless the occupier consents, charges ranking before the enforcing creditor's right remain in place (the successful bidder takes the property subject to them), there may be outstanding debts to the owners' association or for property tax (IBI), and the information available is that of the proceedings, with no guarantee as to condition or area. Transfer tax and registration costs must also be paid.

Before bidding, it is advisable to examine the case file and the registry certificate of charges, check whether there are occupiers and under what title, calculate the total cost of acquisition and assess the time and cost of recovering possession. A prior study can save you a serious disappointment.

Until you pay the rest of the price, the auction is not completed. After the award is approved, the successful bidder has a short period (as a general rule, twenty days) to pay into the court account the difference between the deposit and the price offered. If payment is not made in time, the deposit (the 5% lodged) is forfeited and applied to the purposes of the enforcement.

In addition, the law allows the award to be approved in favour of bidders who reserved their bids, in order, so that the loss of a successful bidder does not usually halt the enforcement. The deposit is forfeited even if the default arises because the bank has refused finance, because auctions do not generally admit conditions precedent.

It is therefore essential to have the finance arranged before bidding. Some institutions grant loans for auctions, but the timescales are tight. Assignment of the award to a third party is generally available only to the enforcing creditor, so you cannot bid in order to resell the winning position. If a liquidity problem is foreseen, you should speak to a lawyer before the period expires.

Mortgage enforcement is the procedure by which a creditor holding a mortgage claims payment of the debt by realising the mortgaged property. It may be judicial (Articles 681 et seq. of the Civil Procedure Act) or notarial, although the judicial route is the more common. It begins with a claim accompanied by the deed and the certificate of the balance, and the court demands payment from the debtor and, where applicable, from any mortgagor who is not the debtor.

In a loan to a consumer, the bank may call in the loan early for non-payment only if the thresholds in Article 24 of Law 5/2019 are met (as a general rule, a percentage of the capital unpaid, 3% in the first half of the life of the loan and 7% in the second, or a large number of instalments) and after demanding payment and granting a minimum period.

The duration depends on the court, on whether there is opposition, on whether the procedure is suspended for unfair terms or vulnerability, and on how long it takes for the auction to be held. As an order of magnitude, it is measured in months and may exceed a year. However, it is unwise to rely on time working in the debtor's favour: default interest continues to accrue and legal costs increase.

In many cases there is room for manoeuvre, but you must act as soon as possible and choose the right route. The first is to negotiate with the lender: debt restructuring, a grace period, extension of the term, partial write-off or surrender in lieu of payment (dación en pago).

If a claim has already been filed, the second is to oppose it within ten days of the demand on one of the grounds listed in Article 695 of the Civil Procedure Act: extinction of the security or the debt, an error in the amount claimed, the existence of another security or a prior seizure, or the unfair nature of a contract term (for example, early repayment, default interest or expenses), which the court may also examine of its own motion. Opposition suspends the procedure until it is resolved.

Where the main residence is concerned, the debtor may also release the property by paying the sums due and the instalments falling due during the procedure, plus costs, before the auction. If the auction does take place, the award on a main residence is not approved for less than 70% of the auction value unless it covers everything owed. And where there is economic vulnerability, the protective rules may allow the eviction to be suspended for a period; these measures have been extended and repealed several times, so their validity must be checked at any given moment. If the debt is unmanageable, a voluntary sale of the property or discharge of debts through insolvency (second chance) may also be considered.

A preventive annotation (anotación preventiva) is a provisional entry in the Land Registry warning anyone consulting the property that there is a claim, court proceeding or seizure that may affect it. The most common are the preventive annotation of a claim and of a seizure (Article 42 of the Mortgage Act).

It does not mean that you have lost ownership, nor does it, by itself, prevent you from selling or mortgaging, but anyone who buys or accepts the mortgage does so subject to that charge: if the proceedings end in favour of the person who obtained the annotation, the new acquirer is affected. In practice, selling or financing the property becomes very difficult. In the case of a seizure, moreover, the annotating creditor acquires priority over creditors whose rights are registered later.

The annotation expires after four years, unless extended by court order (Article 86 of the Mortgage Act), and is cancelled by court order, by payment or with the creditor's consent, or on expiry. If one has been entered against you, you should identify the proceedings giving rise to it, check whether the seizure was proper, consider payment or a settlement to have it lifted and, if the property is not yours or a creditor has a better right, bring a third-party claim.

A third-party ownership claim is an action brought by a person who is neither a debtor nor a party to the enforcement, but who claims to be the true owner of a seized asset, in order to have the seizure lifted (Articles 595 et seq. of the Civil Procedure Act). It is typical where a property is seized that the debtor had already sold, donated or transferred to another person (for example, to a former spouse on divorce) but which still appeared in the debtor's name in the Land Registry.

To succeed, ownership must be proved by a title predating the seizure and bearing a reliable date (a public deed, or a private document whose date can be proved against third parties), and the claim must be filed while the asset has not been realised and delivered to the buyer. If it is upheld, the seizure is lifted and, if it was annotated, cancellation of the annotation is ordered.

There is also the third-party priority claim (tercería de mejor derecho, Articles 614 et seq.), which does not dispute ownership but who should be paid first from the proceeds of the asset: it is brought by a creditor alleging a preferential claim (for example, one secured by a right in rem or with statutory priority). Both have very strict time limits and evidential requirements, so you should act as soon as the seizure becomes known.

Eviction for non-payment is handled through oral proceedings (Article 250.1.1 of the Civil Procedure Act), in which the landlord simultaneously claims termination of the contract, recovery of the home and the rent owed. Before filing a claim it is advisable to demand payment in a verifiable manner (for example, by burofax), because that demand later affects whether the tenant can halt the eviction by paying (enervación).

Once the claim is admitted, the court requires the tenant within ten days to vacate, pay or oppose. If the tenant does nothing, a decree ending the proceedings is issued and the eviction date already set stands. If the tenant opposes, a hearing is held and judgment given. If the tenant pays or deposits everything owed before the hearing, the eviction is halted (Article 22.4 of the Civil Procedure Act); this can normally be done only once and is not available if the landlord demanded payment at least one month in advance.

The claim must state whether the home is the occupier's main residence and whether the claimant is a large-scale landlord (gran tenedor), and the court may suspend the proceedings and refer the matter to social services if the defendant demonstrates vulnerability. The duration depends greatly on the court: from a few months to more than a year where there is opposition and suspensions.

Removal (lanzamiento) is the court act by which possession of a property is delivered to the person entitled to it, removing whoever occupies it. It is the final stage of several procedures: eviction for non-payment or at the end of a contract, mortgage enforcement (when the successful bidder requests possession), unlawful occupation or enforcement of a judgment for recovery of possession.

The court sets a day and time, which are notified to the occupier so that the occupier may leave voluntarily and remove their belongings. If the property is a home, social services are informed. On the appointed day the court commission (the court clerk), the applicant's court representative, a locksmith and, if necessary, the police attend; a record is drawn up, the lock is changed and any belongings left inside are recorded.

Removal may be postponed or suspended if the occupier demonstrates vulnerability under the statutory terms (under the ordinary or extraordinary measures then in force), if an agreement is reached or if there is an appeal or incident with suspensive effect. Once carried out, the owner recovers possession and may claim the rent and damages.

Yes, provided that the loan was taken out by a consumer. The law recognises as a ground of opposition the unfair nature of a contract term that forms the basis of the enforcement or has determined the amount claimed (Article 695.1.4 of the Civil Procedure Act), and the court must also review this of its own motion under Directive 93/13/EEC and the case law of the Court of Justice of the European Union.

The terms examined most often are early repayment, default interest, the interest rate floor, fees for unauthorised overdrafts and those passing the costs of formalisation on to the customer. If a term essential to the enforcement is declared unfair, the consequence may be dismissal of the proceedings; if it affects only the amount, the debt is reduced.

Opposition must be filed in time, normally within ten days of the demand, and it suspends the enforcement until it is resolved. For loans predating Law 5/2019, the validity of early repayment is assessed under the case law of the Supreme Court and the CJEU and the transitional provision of that Law. Each case depends on the wording of the deed and the date, so the full contract and any novations should be reviewed.

No co-owner is obliged to remain in co-ownership: Article 400 of the Civil Code gives each co-owner the right to request division of the common property at any time. This is common with properties acquired by couples, inherited by siblings or bought with business partners.

The first step is to try to reach an agreement: one co-owner buys the other's share, the property is sold to a third party, or it is allocated to one co-owner who compensates the others. Since 2025, Organic Law 1/2025 has generally required proof of an attempt at negotiation or mediation before filing a claim in most civil proceedings, with exceptions that must be checked in each case.

If there is no agreement, the matter goes to ordinary declaratory proceedings. If the property cannot conveniently be divided (as is usual with a home), the court orders its sale at public auction, with outside bidders admitted, and the price is distributed among the co-owners according to their shares (Article 404 of the Civil Code). In the meantime, measures such as judicial administration or regulation of use may be requested. If the co-ownership arises from an undivided inheritance, the special procedure for division of an inheritance applies. The action for division is not time-barred for as long as the co-ownership lasts.

A declaration of insolvency changes the treatment of the debtor's properties. As a general rule, the commencement and continuation of enforcement against assets used in the professional or business activity or a production unit is restricted, and creditors with security in rem over other assets may, under certain conditions, enforce against them, always subject to the rules of the Consolidated Text of the Insolvency Act (Royal Legislative Decree 1/2020) and the supervision of the insolvency judge.

Mortgage creditors hold a claim with special priority: they are paid from the value of the mortgaged property ahead of the others, up to the limit of the security, and the remainder of their claim is treated in the same way as that of ordinary creditors. In the liquidation phase, the insolvency administrator sells the properties in accordance with the liquidation plan, normally by auction (usually electronic) or by direct sale authorised by the court.

If you are an individual debtor, insolvency may lead to the discharge of unsatisfied liabilities (second chance). If you are a creditor, it is essential to notify your claim in time and decide how to exercise your security. And if you are considering buying a property from an insolvent party, you should check that the sale has the necessary court authorisation and which charges remain.

Once the decree of award is final, the successful bidder is the owner but not necessarily the possessor: the property may still be occupied by the debtor or by third parties. The law allows the enforcing court itself to be asked to put the successful bidder in possession (Article 675 of the Civil Procedure Act), without the need for a new trial.

If the property is unoccupied, possession is delivered directly. If it is occupied by the debtor or by persons who cannot show title, the court orders removal. However, if the occupier alleges and proves a title legitimising possession (for example, a tenancy agreement), the court does not rule on the validity of that title in the enforcement and it may be necessary to bring the corresponding declaratory proceedings. If the property was the debtor's main residence, social services are informed of the situation.

To avoid surprises, it is advisable before bidding to find out who occupies the property and under what title, because this determines the time and cost of recovering possession. After the award, the taxes must be settled and the decree entered in the Land Registry, requesting cancellation of later charges.

Final judgments, decrees and court orders are registrable titles in the Land Registry (Article 3 of the Mortgage Act), but the registrar must assess them and may suspend or refuse registration if defects are detected. It is therefore advisable to monitor the registry stage, which often determines whether the outcome of the proceedings translates into an effective right over the property.

In an auction or award, a certified copy of the decree of award is submitted together with the order for cancellation of charges (Article 674 of the Civil Procedure Act), which orders cancellation of the entry of the enforced mortgage and of later rights. Payment or filing of the transfer tax (or stamp duty) and of the municipal plusvalía tax must also be evidenced, along with the fact that holders of later charges have been notified.

If the registrar suspends registration because of a curable defect, the defect can be cured or the missing documents provided; if registration is refused, an appeal lies to the Directorate General for Legal Certainty and Public Attestation (Dirección General de Seguridad Jurídica y Fe Pública) or a claim may be filed before the court of first instance. Preventive annotations of seizure and of claims expire and must be extended in time; otherwise, the outcome of the proceedings may lose priority.