Facts
Spouses [A.] are co-owners of two parcels encumbered by a second-rank bearer mortgage certificate of 300,000 francs. They have agreed to divide this title into two mortgage certificates of 260,000 and 40,000 francs, with Mrs. [A.] recognizing herself as the sole debtor of the 40,000 franc mortgage certificate. Requested to register this modification with mention of the initial debtor of the 40,000 franc mortgage certificate, the land registry of the canton of Geneva rejected this request, on the grounds that the new model of mortgage certificate established by the Federal Office responsible for land registry law and land law no longer includes the indication of the owner and the debtor.
Spouses [A.] appealed against this decision to the Federal Tribunal, arguing that the absence of indication of the third-party debtor on the mortgage certificate would create a significant risk of provisional release against the owner of the encumbered property, and that a mortgage certificate not indicating the name of the debtor could not be considered a negotiable instrument incorporating a claim.
Considerations
The Federal Tribunal dismissed the appeal. It considered that the mortgage certificate drawn up by the land registry keeper is an authentic title constituting a title of provisional release, without it being necessary for it to bear the signature of the debtor. Even in the event of proof of the creditor's acceptance of the debt assumption, no legal mechanism guarantees that the mortgage certificate will be modified by the land registry keeper with regard to the name of the debtor.
During the revision of the Land Registry Ordinance in 1996, it was decided to abandon the requirement of indicating the name of the debtor in the…