Ejercicio extrajudicial del derecho retracto legal y acción personal de cumplimiento: implicaciones notariales

Abstract

Legally recognized real rights of pre-emption and redemption ordinarily unfold through their extrajudicial exercise with notarial intervention. According to well-established—though somewhat little-known—case law, where such exercise is accepted, it results in a perfected contract of sale arising from the extrajudicial enforcement of the right of redemption, giving rise to a personal action to demand performance of what is due.

This work offers a doctrinal analysis, with clear practical implications, of the main conceptual issues surrounding this form of exercise of such real rights, together with the most significant notarial implications. It also necessarily refers to Organic Law 1/2025 of 2 January, under whose entry into force the proper formalization of the MASC (appropriate means of dispute resolution) suspends—historically in Spanish Civil Law, both common and special—the limitation period for the exercise of the real action of redemption.

The study further examines notarial intervention in the registration of the decree of adjudication in a public auction for the purposes of deeming the requirement set out in Article 25.5 of the Urban Leases Act (LAU) to have been fulfilled; the consequences of failure to appear before a notary after acceptance of the redemption; as well as the notarial function in cases involving conveyancing instruments with strictly personal, non-subrogable obligations, and the recording of a claim brought in exercise of the personal action arising from redemption as the sole means of preventing the emergence of a third party protected under Article 34 of the Mortgage Act.